Education briefing – Employment Rights Act – important trade union and industrial action changes in force from 18 February 2026

This briefing summarises these reforms and their impact for education sector employers and looks ahead to other changes that will affect the relationship between education sector employers and trade unions.

So what comes into force on 18 February 2026?

Repeal of 40% support threshold in ballots affecting important public services

Currently, when workers engaged in "important public services" (which includes the education of those under 17) are balloted on industrial action, unions will only obtain a mandate for action if at least 40% of those balloted vote to take action. This is in addition to the requirement in all ballots that a majority of those voting must vote in favour of industrial action and at least 50% of all eligible members must have voted.

This 40% support requirement in important public services no longer applies in relation to ballots opening on or after 18 February 2026. A ballot opens on the first day when a voting paper is sent to any person entitled to vote in the ballot. This change ends the distinction between ballots affecting important public services and those affecting other employers - all ballots will be subject to the same rules.

For the time being, unions will still need to secure a turnout of at least 50% of all members entitled to vote. However, this 50% turnout threshold will be repealed in due course. This repeal is now expected to happen in August 2026, rather than April 2026 (as had previously been indicated ). At that point, we will revert to the original requirement before the Trade Union Act 2016 – a union will only need to secure support for the action from a simple majority of those actually voting (however many or few that may be). That change is likely to mean that ballots take place over a shorter period than is typically the case at the moment, as unions will not need to spend as much time and energy “getting out the vote”. Aggregated ballots across numerous employers are common in the education sector, for example in Higher Education, and this change means that unions will continue that approach – the absence of a turnout threshold means that there will be no real risk in expanding the number of members to be balloted.

Reducing the information that unions must include on an industrial action ballot voting paper

Where the sample ballot paper is provided to the employer on or after 18 February 2026, there will no longer be a requirement for the ballot paper to set out a summary of the dispute, the periods within which the industrial action is expected to take place or the type of action short of strike to be taken (if relevant).

Instead , we will revert to the pre-Trade Union Act 2016 position, so that a trade union will only have to ask its members on the ballot paper which type of industrial action they are prepared to take part in (strike action or action short of a strike).

Reducing the information a union must include on the ballot notice sent to an employer

For ballot notices received by the employer on or after 18 February 2026, a trade union is no longer required to provide information which breaks down (typically in a matrix form)the number of members being balloted by job category and workplace, nor to provide an explanation of how the total number of employees concerned was determined by the union. The ballot notice will only need to contain a list of the categories of employees being balloted, a list of the workplaces in which the employees work and the total number of employees concerned. This means that employers will not get the same granularity of information about the distribution of union members across their workforce. Employers will have reduced visibility of “hotspots” of union membership in particular roles or parts of their operation, making it harder to identify the areas most likely to be impacted by the action.

Notice of industrial action to the employer and the information in that notice

For industrial action notices received by the employer on or after 18 February 2026, the notice period to be given to the employer by the union before it can commence industrial action is reduced from 14 to 10 days (the government had originally proposed to reduce this to 7 days).

Again, employers will receive less information at this stage than is currently required. Trade unions will have to list the total number of members j being called on to take part in the action and their job categories but will not have to state the number of members in each category. However, in contrast to the information required when the ballot is notified, the notice of action will need to give the total number of members being called out in each workplace. In Higher Education, for example, unions often give this information on a building-by-building basis and if that approach continues this would provide a level of granularity missing at the ballot notice stage.

As mentioned, these changes will apply to industrial action notices received by the employer on or after 18 February 2026  and therefore the current rules will apply to notices provided before 18 February 2026, even if the industrial action will take place on 18 February or later.

Period of effectiveness of industrial action ballots

Currently where the union obtains support for industrial action through a ballot, that mandate remains effective for 6 months (or 9 months where the employer agrees this longer period).   In relation to ballots opening on or after 18 February 2026 the period of 6 months is extended to 12 months. This longer mandate cannot be extended by agreement with the employer – if the union  wants to continue the action, it will need to re-ballot.

Protection against dismissal for taking part in protected industrial action

Currently, dismissing an employee for taking part in protected industrial action (action which is authorised or endorsed by the union and where the legal requirements - including balloting and notification - have been met) is automatically unfair where this takes place:

• within the protected period – normally 12 weeks from the date the employee commenced taking industrial action; or
• after the protected period but the employee ceased taking industrial action before the end of the protected period; or
• after the end of the protected period, the employee had not stopped taking protected industrial action before the end of the protected period, and the employer had not taken reasonable steps to resolve the dispute to which the industrial action related.

This all changes in relation to any employee who begins to take industrial action on or after 18 February 2026 (but not where their participation began before 18 February 2026 or where it began before 18 February 2026 and continues after that date).  Where the new position applies, the “protected period” essentially becomes indefinite – it will be automatically unfair to dismiss an employee for taking part in industrial action, regardless of how long has elapsed since they took part. This means that employers may face automatic unfair dismissal claims on this basis months or even years after the dispute has ended. While the automatic unfair dismissal claim may be tenuous after such a long period has passed, there will be increased scope for employees to argue that the real motivation for their dismissal is their past participation in strikes or action short of strike, in the same way, for example, that employees may argue that a historic whistleblowing disclosure is the real reason for their dismissal.

Other changes taking effect on 18 February 2026

The requirement for the union to provide a picketing supervisor will cease in respect of any industrial action taking place on or after 18 February 2026.

The public sector check off rules introduced by the Trade Union Act 2016 are also being repealed on 18 February  2026. These only allowed public sector employers to provide a check off service for paying union membership subscriptions if their workers had the option to pay their subscriptions by other means and arrangements had been made for the union to make reasonable payments to the employer for making the deductions.

From 18 February 2026, there will be no requirement for public sector employers to publish information relating to time off taken by those officials for trade union duties and activities. Rules giving the government the ability to introduce regulations limiting the amount of paid time off which could be taken are also repealed.

Further trade union and industrial relations changes in 2026

Looking further ahead, changes simplifying the process for statutory trade union recognition  are due to come into effect on 6 April 2026. Unions seeking statutory recognition will only have to show that they have 10% membership in the proposed bargaining unit – the requirement to provide evidence that a majority of those workers are likely to support recognition is removed. If the issue of recognition goes to a ballot, the union will only need to secure a simple majority in favour and not the support of 40% of the bargaining unit.

The introduction of electronic and workplace balloting for statutory trade union ballots (eg industrial action ballots) and the repeal of 50% turnout threshold in industrial action ballots is now planned for August 2026.  Electronic and workplace balloting for union recognition and derecognition ballots will not happen until 2027.

October 2026 is the planned timetable for provisions in relation to facilities for trade union officials and learning representatives; time off and facilities for union equality representatives; extending protection against detriment for taking industrial action; the introduction of the new duty to inform workers of their right to join a trade union and giving trade unions' new rights to physical and digital access to workplaces and workers (not just their members).

Whether all of these changes happen as planned remains to be seen but the following consultations have already been published and the outcomes are awaited:

• consultation on the duty to inform workers of their right to join a trade union - closed 18 December 2025
• consultation on the right of trade unions to access workplaces - closed 18 December 2025
• consultation on electronic and workplace balloting - closed 28 January 2026

There is also one open consultation on trade union issues - the revised code of practice on access and unfair practices and on unfair practices in electronic ballots – this was published on 4 February 2026 and closes on 1 April 2026.

Finally, not directly on trade unions but of relevance to institutions by way of an update:

• a consultation on fire and rehire – changes to expenses, benefits, and shift patterns - was published on 4 February 2026 and closes on 1 April 2026
• the planned changes to “ban” fire and rehire to make a restricted variation (unless extreme financial difficulties apply) have been pushed back to January 2027 (from October 2026)
• a consultation on improving access to flexible working was published on 5 February 2026 and closes on 30 April 2026 – the changes on flexible working are still planned for 2027