Government consults on draft Code of Practice on electronic and workplace balloting: how will it work in practice?

Statutory trade union ballots are currently conducted exclusively by post, but the government is expanding the available methods by introducing electronic and workplace balloting. A new Code of Practice on electronic and workplace balloting for statutory union ballots will provide guidance on how these processes should operate in practice. To shape its approach, the government has launched the Consultation - Draft Code of Practice on Electronic and Workplace Balloting for Statutory Union Ballots, seeking views on the proposed code. 

What are the new voting methods?

The government plans to introduce three new voting methods, in addition to postal ballots:

1. ‘Pure’ electronic bargaining: where the distribution of the voting pack, the casting and return of the votes, takes place entirely through electronic means. This could be used to conduct industrial action ballots, political fund/resolution ballots, union election ballots, and union merger ballots.
2. Hybrid electronic balloting: where voting materials are distributed by post, with members able to return their vote either by post or electronically (i.e. casting their vote online in an internet portal or website administered by the scrutineer). This could be used to conduct industrial action ballots, political fund/resolution ballots, union election ballots, union merger ballots, statutory recognition and derecognition ballots, and Part III (changes affecting the bargaining unit) ballots.
3. Workplace balloting: votes are cast in person at the workplace, via a physical ballot box and paper, or at an off-site location (if on-site voting is impractical). All arrangements must be agreed voluntarily and in advance between the union, scrutineer, and employer. This can only be used to conduct industrial action ballots.  

All statutory union ballots conducted using these new methods must be overseen by an independent scrutineer, who has been instructed to conduct the ballot and complies with applicable cyber security standards. 

The new Code of Practice 

The government states that the new Code of Practice on Electronic and Workplace Balloting for Statutory Union Ballots will be the primary source of practical guidance on conducting ballots using these new methods. 

The Code provides employers, trade unions, and independent scrutineers with detailed guidance on electronic and workplace balloting and sets out good practice. It also outlines the responsibilities of each party to ensure ballots meet the required standards, for instance: 

• Unions are advised to confirm that members are willing to receive and return a ballot in a non-postal format before using the electronic ballot method, and that they are told not to complete an electronic ballot while at their workplace, connected to workplace Wi-Fi, or using a workplace device.
• Independent scrutineers must ensure the chosen method is legally compliant and produce all ballot papers, unique identifying number, and/or electronic ballot access methods used.
• Employers, while having no involvement in electronic balloting, must not take any action that could hinder eligible workers from voting freely, fairly, and in secret. 

The Code also sets out the factors and criteria that the ‘responsible person’ must consider when selecting the most appropriate permitted voting method - or combination of methods - for the ballot.

Consultation

The consultation seeks feedback on the draft code itself. It does not cover the policy intent behind electronic and workplace balloting or the Order introducing these measures. Instead, it focuses on specific questions about the code, such as whether the definitions are sufficiently clear and whether any additional responsibilities should be included. 

What does this mean for employers?

Even though you won't be involved in the ballot process, you must ensure you must comply with the Code, once in force, to ensure that you don't do anything that could interfere with workers' ability to vote without pressure. For example, you should not try to find out whether employees using workplace Wi-Fi or devices (such as phones, laptops, or tablets) are taking part in an electronic ballot or attempt to identify which union members are voting electronically at work. 

You don't have to agree to workplace balloting, but if you do consent, you will need to work with the union and independent scrutineer to agree terms of access for the ballot. This will take time and resources. 

Overall, once these measures are implemented, it will become easier for workers to participate in ballots, which could result in more strike action. The government states in the consultation document that once electronic and workplace balloting are implemented, ‘workers will be able to participate in ballots more easily, helping both unions and employers to ensure ballots are conducted to a high standard, supporting robust and democratic outcomes in industrial relations.'

Next steps

The consultation closes at 11:59pm on 28 January 2025. 

After the deadline, the government will review and analyse all submissions before publishing its formal response. These proposed changes are not included in the Employment Rights Bill currently being debated in Parliament. Instead, they will be introduced through a statutory instrument (the Order), which will be laid before Parliament, together with the Code of Practice, for approval. 

The consultation document explains that this forms part of a three-phase approach: 

• Phase 1: implement the new balloting methods for specific union ballots as outlined in this consultation and establish a Senior Oversight Board for electronic and workplace balloting to provide expert advice and monitor implementation.
• Phase 2: extend the ‘pure’ electronic balloting method to cover statutory and derecognition ballots.
• Phase 3: continue working with the Senior Oversight Board to assess implementation and explore enhancements to the electronic and workplace balloting regime.

This consultation follows two recent government consultations: one on the new duty to inform workers of right to join a trade union, and another on the right of trade unions to access the workplace. You can read more about these consultations in our article ‘Trade union consultations: what do the government’s proposals mean for employers?'.

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