On 26 February 2026, the Government published two new consultations on measures introduced under the Employment Rights Act (ERA) 2025. One concerns the scope of the new protection for workers against detriments for taking lawful industrial action. The other seeks views on what the new organisation‑wide threshold for triggering collective redundancy obligations should be.
These reforms under the ERA 2025 are due to take effect later in 2026 and in 2027, respectively.
Protection from detriment for taking lawful industrial action
Following the Supreme Court’s 2024 decision in Secretary of State for Business and Trade v Mercer [2024] UKSC 12, the Government accepted that UK law did not adequately protect workers from sanctions short of dismissal for participating in lawful industrial action (see our previous briefing). The ERA 2025 introduces new provisions to the Trade Union and Labour Relations (Consolidation) Act 1992 to address this gap in protection. These provisions were brought into force on 18 February 2026, but will have no practical effect until regulations are made prescribing the types of unlawful detriment that are covered.
The new consultation seeks views on how the expanded protection should operate. The Government’s preferred approach is to ban all forms of detriment connected with lawful industrial action. This would mirror the approach to detriment under other provisions and minimise the risk of non‑compliance with Article 11 of the European Convention on Human Rights.
The alternative option under consideration is to introduce an exhaustive list of prohibited detriments. Although a list has the benefit of clarity for managers, the Government is concerned that it could also encourage employers acting in bad faith to impose other (non-prohibited) detriments.
The consultation confirms that the existing position on pay deductions will remain unchanged. Proportionate deductions for time lost to a strike or for partial performance will continue to be lawful and will not be treated as a detriment.
The consultation closes on 23 April 2026, with regulations expected to come into force in October 2026.
Threshold for triggering collective redundancy obligations
Under the current law, collective redundancy obligations are triggered when an employer proposes 20 or more redundancies at one establishment within 90 days. The ERA 2025 introduces an alternative organisation‑wide trigger to apply alongside the 20 or more ‘one establishment’ threshold, when redundancies are proposed at multiple sites.
Once in force, employers will have to collectively consult with affected employees and notify the Secretary of State if they propose to dismiss a minimum threshold number of employees across their entire organisation within 90 days.
On 26 February 2026, the Government published its consultation on how the threshold number should be set. It notes that large employers can currently make substantial numbers of redundancies dispersed across multiple establishments without triggering collective consultation obligations. The organisation‑wide trigger is intended to extend protections to employees who do not currently benefit from the collective redundancy rules.
The Government’s preferred option is to adopt a single fixed number within the range of 250 to 1,000 proposed redundancies. It considers this the simplest and clearest method for employers, employees and trade unions, and the option least likely to lead to disputes.
The alternative is to adopt a tiered approach, where different thresholds apply depending on employer size. Proposed tiers are:
• 250 redundancies for employers with 0 to 2,499 employees
• 500 redundancies for those with 2,500 to 9,999 employees
• 750 redundancies for those with 10,000 or more employees.
However, the Government notes that such an approach may allow very large employers to make significant numbers of redundancies without consultation and would introduce administrative problems for employers whose staffing numbers fluctuate.
The consultation also explores possible methods for calculating workforce numbers, including fixed snapshot dates and rolling averages, and asks whether any employee groups should be excluded from headcount calculations.
This consultation closes on 21 May 2026, and the implementing regulations are expected to take effect at some point in 2027. A separate Code of Practice on collective redundancy obligations will be consulted on later in 2026.
The Birketts view
The proposal to prohibit all forms of detriment for taking lawful industrial action would create a broad and potentially far‑reaching obligation. Employers will need to ensure that decisions made during periods of industrial action are appropriately justified and avoid any measures that could be construed as a detriment relating to an individual’s participation in industrial action.
The introduction of an organisation‑wide threshold for collective redundancies is a substantial shift from the existing ‘one establishment’ model. Employers with multi‑site operations will face greater obligations to monitor redundancies across the whole organisation. For large employers in particular, the government’s preferred single fixed threshold may require earlier and more frequent engagement with employee representatives and trade unions. Redundancy processes may become longer and more complex, meaning that employers will need to build adequate time and resources into restructuring plans.
Key Contacts
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at March 2026.