This week, government launched five consultations on the Employment Rights Act (ERA):

1. Trade Union recognition: 'Consultation on (1) The revised Code of Practice on Access and Unfair Practices and (2) Unfair Practices in Electronic Ballots'
2. Fire and Rehire - Changes to expenses, benefits and shift patterns
3. Improving access to flexible working
4. Modernising the Agency Work Regulatory Framework
5. Strengthening the laws on tipping

The BRC will be responding to the first three on behalf of retailers, and are also interested in hearing views on the agency work consultation. 

See below for further information below on how to engage with the BRC as we build our responses.

Update to implementation roadmap

Alongside the consultation package, the government announced that several measures would see a delay to their implementation, given the delay in the Act receiving Royal Assent. The following changes have been confirmed:

• E‑balloting will come into force in August 2026 (previously April 2026)
• E-balloting for statutory recognition and derecognition ballots will come into force in 2027.
• Trade union recognition changes (including removal of majority test/40% threshold) will come into force as planned on 6th April, but right of access and unfair practice measures will now sit with the revised Code expected in October 2026.
• Fire and rehire changes will come into force on 1st January 2027 (previously October 2026).

Consultation details

Consultation on the revised Code of Practice on Access and Unfair Practices, and unfair practices in electronic ballots

Changes to Trade Union recognition and derecognition are coming in force later this year, and Government is consulting on its updates to the Code of Practice on access and unfair practices during the recognition and derecognition process. 

It is worth noting that the consultation does not cover the changes to the 40% support threshold for union recognition, the removal of which will come in to force on 6th April. The consultation seeks views on:

• Changes made to the code in relation to changes being made to the statutory recognition and derecognition process by the ERA.
• Changes to the structure of the Code, including making provisions applicable to the full recognition and derecognition process and not just the ballot stage.
• Other changes have been made to the Code unrelated to ERA, including changes to reflect modern working practices and language

The proposed Code relates solely to the recognition and derecognition process, which is not the same as the new general access provisions in the ERA, which are being consulted on separately.

The second part of the consultation looks at proposed changes to the legislation on unfair practices to facilitate the use of electronic balloting methods for recognition and derecognition ballots.

We are keen to hear from retailers on this, and as always, are available to 121 conversations with members – please contact Luiza (luiza.gomes@brc.org.uk) to arrange a chat. The consultation closes on 1 April, and we welcome written feedback on this by 13 March. We’ll arrange a HR Technical to inform our response (date to be confirmed shortly).

Additionally, ACAS has launched a consultation on the draft Code of Practice on time off for trade union duties and activities, seeking to embed the changes made in the ERA and offer clarity of the law and practical guidance on the new requirements. The consultation seeks views on changes and clarity in guidance and around the new requirement for employers to provide accommodation and facilities for carrying out their duties. BRC will be responding and is seeking members' views - please share your views with Cara (Cara.Shepherd@brc.org.uk) or arrange a call by Friday 27th February.

Fire and rehire

The second consultation launched concerns 'Fire and Rehire: changes to expenses, benefits, and shift patterns'. Following extensive representations from the BRC and others (see our 2024 consultation responses on fire and rehire here), government amended its original proposals in this area which specified certain restricted and unrestricted variations - that is, some contractual amendments will now be considered acceptable and fall out of scope of the new provisions. 

The consultation seeks views on the specific types of contractual amendments that should fall in and out of scope of the policy. In particular, it covers two areas: employment expenses & benefit in kind, and changes to shift patterns.

BRC will be responding and are seeking members' views. Please share your views or arrange a call with Luiza (luiza.gomes@brc.org.uk) by Friday 13th March. We will also confirm a member meeting to discuss the consultation in due course. 

Improving Access to Flexible working

The government committed within the Employment Rights Act to strengthen the right for workers to request flexible working by mandating employers to meaningfully consult with the worker as they process the request, and provide an explanation to the worker should they decline the flexible working request under any of the existing eight business reasons. 

The consultation focuses on the specifics on these arrangements, seeking views on:

• The impact of reforms to flexible working introduced in April 2024
• The proposed new process for consulting employees on flexible working requests
• Further training, resources or support that individuals or employers would benefit from

The consultation will be open for 12 weeks, closing on Thursday 30th April. Please share your views with Ben (ben.george@brc.org.uk) by Thursday 2nd April. 

Modernising the Agency Work Regulatory Framework

This consultation seeks views on strengthening the existing agency work regulatory framework with the stated intention of improving predictability and security in work for the temporary labour market.

BRC is keen to hear from members whether the regulatory framework, or any specific questions, are of relevance to the industry. This will inform whether the BRC responds to the consultation. Please let Luiza (luiza.gomes@brc.org.uk) know your views and/or if you would like BRC to respond by Friday 13th March.