Government publishes updated code of practice on right of trade unions to access workplaces

Ahead of the new right of trade unions to access workplaces being introduced in October under the Employment Rights Act 2025, the government laid before Parliament a revised code of practice in July, together with accompanying regulations.

What has changed?

The new Code of practice: right of trade unions to access workplaces has been amended following a period of consultation that concluded in May. Key changes include:

• trade unions are not required to seek voluntary access agreements as a pre-condition for applying for access using the statutory process;
• when the CAC is considering the right to access, there is a presumption that access should be granted;
• minor accidental clerical or administrative errors in a trade union’s application should not be regarded as a reason for the employer to reject the application;
• the period of 15 working days for the employer to respond to the application request starts from the date the request is received, not from the date it is passed to the relevant person;
• an employer refusing an access request on the grounds that the access will unreasonably interfere with their business is expected to provide details as to why they believe this to be the case;
• the trade union and the employer have 25 working days following the day on which the response notice is given to negotiate the terms of an agreement. This is a material change from the wording of the original draft code which provided that the 25 day period started from the conclusion of the response period;
• where positive negotiations are ongoing, the parties do not need to apply to the CAC for an extension. Where the union sends the access agreement to the employer beyond the 25 days negotiation period, this re-starts the statutory timetable;
• the new code sets out more clearly that employers should take reasonable steps to facilitate access by officials of a qualifying trade union and that physical and digital access are not mutually exclusive;
• the access agreement can be extended beyond the statutory two years if the parties agree; in the absence of such an agreement, any agreement longer than two years must be rejected by the CAC;
• the revised code expands the scenarios in which a request can be refused. These include where one or more of the workers that the union wants to access are part of a bargaining unit of a union already recognised; where there is an ongoing statutory recognition process; where there is a statutory access agreement in operation covering one or more workers; or where there is a ‘live’ application in progress;
• workers who attend a meeting organised by the trade union with the employer’s agreement through an access arrangement during work time, should be paid, in full, for the duration of their absence;
• if a party complains of a breach of the right of access, the CAC is required to take into account the nature, gravity and impact of the breach being different for each liable party, alongside the number of workers affected;
• the code expands on the treatment of surveillance, recording and monitoring in the context of both in-person and digital access to workplaces.

Further, the code contains a new section dealing with joint applications from two or more unions, and expands on the enforcement regime with examples of how multiple complaints can be addressed. Significantly, the code provides that, where access is agreed on a weekly basis and, following an initial complaint being upheld, is then obstructed on three consecutive weeks, the trade union may submit a separate complaint in respect of each occasion on which access is denied. The CAC may treat those complaints individually and issue a separate penalty in respect of each, moving up the scale (up to £75,000 for a first penalty order or first subsequent complaint, £150,000 for the second, and £500,000 for the third or any subsequent complaint).

What to take away

The revised code places significant emphasis on employers’ duties to facilitate access agreements. The reasons for refusing an agreement should be carefully considered and employers should be prepared to provide a robust and detailed response, within the prescribed periods. Employers should also take practical steps such as updating their website to include the email address to which unions could send their access requests.

Employers who already have facilities to meet with employees may find it difficult to refuse an access request; however even where an employer does not have a dedicated space for employees to meet or has only limited facilities, this is likely to be insufficient to justify a refusal as employers are expected to make ‘every possible effort’ to provide facilities that allow for access to take place.

It is clear that employers who breach these duties risk hefty sanctions, particularly in the case of multiple instances of non-compliance. Employers should also be mindful that, in addition to the penalties that could be imposed by the CAC, workers remain entitled to the existing protections from detriment and inducements in relation to trade union activities contained in the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). Employers therefore could face concurrent proceedings before the CAC and the Employment Tribunal.

Unions and third parties are also subject to the enforcement regime and, as a consequence, may be at risk of fines if they access the workplace in breach of an agreement.

This article was co-written by Cristina Corriero, associate in the employment team.