Trade unions and the new right of access – what employers need to know

Of the many changes to industrial relations law introduced by the Employment Rights Act 2025 (ERA), perhaps the most significant for many employers will be the enhanced right of access granted to trade unions. This new right will come into force from October 2026.

Earlier this year, the government published a detailed response to its consultation over the operational details of the new statutory right of access, and a draft code of practice on the right to access workplaces. A consultation on the draft code closed on 20 May.

The new right of access

The ERA establishes a process to facilitate the making of access agreements between employers and unions by giving unions a right of access to workplaces that allow them to meet, represent, recruit or organise workers (organising industrial action is excluded). As is the case with collective agreements, access agreements will not be presumed to be legally binding, but the employer/union will be able to complain to the Central Arbitration Committee (CAC) in the event of breach.

These new access rights can be highly significant for employers, as they are intended to increase trade union presence in the workplace considerably. Employers’ organisations, including the CIPD and the CBI, have warned that the new rights risk causing significant disruption, and have called on the government to reopen discussions over the proposals. Such discussions currently seem unlikely.

Although the new right of access is not due to come into effect until October, employers should be taking steps now to ensure that they are prepared for the new arrangements. Trade unions will already be considering which workplaces and workers they wish to access (including sectors not typically associated with collective bargaining), the type of access they need and the reasons for it, and preparing their applications for submission in October.

Employers should therefore be taking the opportunity now to start considering which facilities they may make available to unions and whether access to the workplace may require compliance with specific instructions, such as meeting health and safety, other regulatory, or security requirements.

Employers may also wish to consider entering into voluntary access agreements with friendly unions before October, to reduce the risk of enforced access and potentially costly disputes in the future.

Application requests

Both the union’s application and the employer’s response should be submitted in writing, with the preferred method of submission being via email. For a union applying to access an employer’s workplace, the application must contain the following information as a minimum:

• the purpose of the request;
• confirmation that the union is making a statutory request for access;
• the type of access requested and the group of workers the union wishes to access;
• frequency of access and the notice period before the access is due to take place;
• contact details of the person responsible for the application; and
• copy of, or reference to, the union’s certificate of independence.

To assist both unions and employers, a template form is provided; however both parties can opt out from using the template as long as their application or response contain the necessary information. The minimum notice that must be provided before the first access is five days, and two days thereafter for each subsequent access.

The union should also identify whether the request is a repeat of a recent request and, if so, provide the date on which the previous request was made together with a draft of the proposed access agreement.

Employers have a period of 15 working days in which to respond, which was extended from five working days as a result of the consultation process. However, concerns remain as to the reasonableness of this time frame where the application concerns multiple workplaces, or in respect of workplaces where access may be more complex, for example construction sites or sites that require specific security clearance.

The employer’s response should confirm whether the request is agreed and, if not, whether it is rejected in part or in full.

If the request is accepted, the response should include the details of the appropriate person with whom the union should liaise for the purposes of the access, a list of the categories and numbers of the workers in the workplace subject to the access application, details of any shift patterns and, where applicable, details of any facilities available.

If the request is not granted, the response should set out which parts of the application are refused and why. The employer must also confirm whether they have received another access request or are engaged in negotiations with another union.

Simplified requirements are provided where the employer and the union have previously negotiated an access agreement for the same workplace, and the union makes a further access request on the same agreed terms.

Where an agreement has been reached, the parties will have to jointly notify the CAC; joint notification is also required for any variation which is more than minor, or revocation of the agreement.

Consultation

Where the employer rejects the request in full or in part, the parties can engage in negotiations with a view to reaching an agreement. The consultation period has been extended by the government from 15 to 25 working days. However, as above, concerns remain that the consultation period remains too short, increasing the risk of early and possibly unnecessary applications to the CAC.

The parties can extend the consultation period; however, if no agreement can be reached, either party can notify the CAC and trigger the decision-making process. The interested party has 55 days from the date the application was initially sent to notify the CAC, which in practice means that the CAC should be notified of the unsuccessful outcome of the negotiation within 15 days from the end of the consultation period. If the parties had decided to extend the consultation period, the timeframe for notifying the CAC is even shorter.

Where the CAC considers that it was not reasonably practicable for a party to apply for a determination within the time limit, this can be extended by a further 15 days, bringing it to 70 days in total from the date the application was made.

The CAC power to reject an application

The CAC must reject the application to access a workplace if the employer has fewer than 21 workers, such employers being exempt from access requests. However, addressing concerns raised in the consultation, the government has now confirmed that a workplace that has fewer than 21 workers, but is part of a wider company that employs 21 or more workers, would be within scope of the access policy.

There will also be an exception to the threshold criteria where workers are covered by a national bargaining process but employed across many smaller workplaces. The exception is likely to come into force from 2027 and will cover, among others, workers providing adult social care and school support staff.

An application will also be refused if the notice ahead of the first access is shorter than five working days and if the agreement is intended to last more than two years.

Additionally, the CAC will reject an application if the right to access the workplace would prejudice national security or hinder the investigation or detention of offences.

Where an application is not rejected for one of the reasons above, it may still be refused by the CAC where:

• there is already a trade union recognised by the employer, or an ongoing statutory recognition process, or an existing access agreement covering the same workers the union wishes to access;
• the request for access includes a requirement to make significant changes to the employer’s infrastructure, such as the provision of a new IT system or building a facility;
• two concurrent access requests are received from different unions – in this case the CAC can reject all applications;
• the union does not intend to comply with reasonable instructions given by the employer to grant access which may include completing health and safety training, or providing relevant identification or security clearance.

Sanctions

When a dispute arises around an access agreement, parties can ask the CAC to determine the dispute. The draft code of practice indicates that an application must be made within three months of the date when the matter complained of is alleged to have occurred.

Where a party is in breach of the agreement or, as the code implies, is in breach of an order from the CAC requiring specified steps to ensure the agreement is complied with, the CAC can require the party in breach to pay a penalty.

The government is seeking to introduce a three-tier system of penalty sanctions, ranging from a fine of up to £75,000 for a first penalty order, to a maximum penalty of up to £500,000 in case of repeated breaches, even where they involve different workplaces.

When determining the measure of a penalty the CAC must consider factors including the gravity and duration of the breach, the number of workers involved, the size and administrative resources of the liable party and any relevant history of non-compliance.

The draft code of practice on trade union right of access

The draft code of practice provides some practical examples of how access agreements may operate in specific circumstances. These include where the access agreement involves third parties, such as an access agreement with a security company where the workers provide their services to premises managed by another employer.

In this case the code suggests that the security company should take reasonable steps to facilitate access, which may include engaging with the employer responsible for the premises. The code also suggests that if the employer managing the premises does not engage with the process, both the union and the worker’s employer can make a referral to the CAC and the normal right of access enforcement framework would apply.

Should this be the case, it means that the CAC may, where appropriate, order the third party to pay a fine for non-compliance with the agreement. This raises concerns that third parties which have not participated in the negotiation of the agreement or have not been able to make submissions to the CAC as to the reasonableness of the access request, may still be subjected to the hefty sanctions the CAC has the power to impose.

Key implications

The new right of access for trade unions has the potential to have a significant impact on UK workplaces, with employers, including those who may not currently recognise a union or be familiar with collective bargaining, seeing increased union activity.

Employers should be familiarising themselves with the new access arrangements, and preparing for the applications that they may be faced with from October. Employers should consider the sort of access that they can/wish to offer, and prepare for any difficulties that may arise. If possible, agree access arrangements with a suitable union now, rather than wait for an agreement to be imposed.

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