The new trade union right to access workplaces: how employers can get ready

This new access regime represents a significant shift for UK industrial relations. At the moment, trade unions don’t have a general right of access to the workplace, they can only exercise their functions if access has been voluntarily agreed or via their members.  However, the default position under the new regime is that if there is a request for access it will be granted in some form.

Employers should expect trade unions to use these new rights strategically, particularly as a means of increasing membership and pursuing recognition and collective bargaining rights.

Employers need to be proactive and ready to deal with access requests, not just wait until they get one.

A recently published amended code of practice provides guidance about how the new right will work in practice and will help employers prepare for change: Make Work Pay: draft code of practice on trade union right of access – GOV.UK.

In this article, we look at:

• the scope of the new right
• the rules around how an access request is made and dealt with
• how access will work in practice
• the proposed enforcement framework
• practical steps employers can take to prepare.

What is the scope of the new right?

Access means physical entry to the workplace and communication with workers (by any means, whether directly or indirectly). Trade unions will be able to seek access for a number of specific purposes, namely:

• to meet, support, represent, recruit or organise workers (regardless of whether they are union members)
• to facilitate collective bargaining

Importantly, the right does not extend to organising industrial action (but it likely follows that the more support a union has in general, the greater the possibility that industrial action could happen in relation to workforce matters).

The concept of an ‘access agreement’ is at the heart of the new provisions. A statutory access agreement may be reached voluntarily between the employer and a trade union following an access request or determined by the Central Arbitration Committee (the CAC). Access agreements can also be made outside of the new statutory regime (which would not be lodged with the CAC). In fact, the code of practice encourages trade unions and employers to continue to use voluntary access arrangements which were already in place or agree new access arrangements on a voluntary basis outside the new statutory process.

How will access requests be made and handled?

Where a voluntary approach is not agreed, there is a specific statutory process for making and dealing with an access request as follows:

• Both the trade union request and employer response has to be in a prescribed form, contain prescribed information and be given in the prescribed manner. One of the most important practical points for employers is the response deadline. An employer must respond to an access request within 15 working days (unless the parties agree an extension). This tight time frame highlights the need for employers to be ready for requests.
• Where an employer response to a request for access is positive then there will be a period of negotiation with the aim of reaching an access agreement. If agreement is reached, then the CAC is notified and the access agreement lodged. If an employer fails to respond, or negotiations do not result in an agreement, then an application can be made to the CAC to determine whether access can take place and if so on what terms.

The CAC’s approach

The CAC will be required to make a decision in accordance with a number of ‘access principles’ which focus on what is reasonable. These are in line with a presumption towards access.

The CAC will look at various factors when deciding whether access should take place. There are a limited number of circumstances where access must not be granted. There are also some where it would be reasonable for the CAC not to grant access, including:

• where the employer already recognises a different trade union in respect of one or more of the workers the access is being requested to;
• where there is an ongoing statutory recognition process concerning one or more of the workers the access is being requested to;
• where an existing statutory access arrangement with a different trade union is in place in respect of one or more of the workers the access is being requested to;

However, if an access request covers some workers who are covered by these factors and some who are not, the CAC is still able to impose an access agreement on the workers who do not fall under these circumstances. There are also provisions relating to multiple access requests and circumstances where it would be reasonable for the CAC not to grant access on that basis (but noting that the legislation allows for two or more trade unions to make a joint application for access).

The government is introducing ‘model terms’ for access agreements. Requests that align with those terms are more likely to be approved, although employers and unions will still be able to propose or agree different terms. Model terms include weekly access and two working days’ notice of access.

There are also a number of terms which the CAC must consider it reasonable for the employer and union to comply with to facilitate access. These include that the employer should make available existing accommodation and facilities in the workplace as is reasonable in the circumstances. The employer should also ensure as far as reasonably possible that direct communications between workers and a trade union are private.

How might access arrangements work in practice?

The code of practice sets out detail about how an access agreement might be expected to work in practice. For example:

Location and timing:

• access should be at the actual workplace and in the actual location of work, and take into account the employer’s usual method of communicating
• access should usually be during normal working hours but minimising unreasonable disruption to the employer’s activities. Thought will need to be given to atypical working patterns, part time workers and shift workers.

Privacy:

• employers must respect the privacy of access meetings
• the employer or any representatives of the employer should not attend access meetings unless invited
• the union should be told of any security or recording cameras and the employer and union then discuss ways to ensure the privacy of meetings
• generally the employer should not question attendees about the proceedings of meetings.

Third parties:

• employers will still need to take reasonable steps to facilitate access in situations where the employer does not have direct control of the premises.

Non typical working patterns:

• any necessary arrangements for non-typical workers should be addressed in the access agreement.

 Digital access

• digital access (which could include, for example, facilitating online meetings through existing IT channels, or cascading information via electronic means) is addressed in some detail, and can take place alongside, or instead of, physical access
• the importance of complying with data protection obligations is stressed and data sharing agreements are encouraged.

What is the enforcement framework?

Where the terms of a statutory access agreement are breached a party can make a complaint to the CAC.

The CAC will have the power to impose substantial financial penalties:

• up to £75,000 for a first penalty order
• up to £150,000 for a second penalty order
• up to £500,000 for third and subsequent penalty order.

Employers will want to ensure that access agreements are carefully drafted to limit scope for arguments around breach. An effective dispute resolution process to resolve issues early and avoid escalation will also be important.

What should employers be doing now?

Although the new rights are not expected to come into force until October 2026 employers should start preparing now.

Key issues that employers should be considering are:

• how likely is it to receive an access request?
• is there a clear internal process in place for handling any access requests which are made?
• where there is an existing recognised union, does the recognition agreement deal with access already, are there existing informal arrangements in place, and should pre-emptive conversations take place to address or formalise access?
• even if there is no existing recognised union, but there is nevertheless some trade union presence in the workplace and an access request is likely, might it be advantageous to have pre-emptive conversations to agree access on voluntary terms outside of the statutory process (albeit such a voluntary agreement will not preclude a formal access request being made)?
• is training needed for managers who will deal with requests and handle union engagement?
• what is the strategy if there is a request – is it better to reach agreement on voluntary terms rather than have an agreement imposed by CAC?
• what forms of physical and digital access would be reasonable in the context of the organisation?
• how can existing systems be used to facilitate digital access?
• what measures are needed to manage privacy, confidentiality and data protection issues?
• what standards of conduct will be expected?

Finally, employers should be considering their broader employee and industrial relations strategy in the context of these changes and the wider changes under the ERA, including simplification of the statutory recognition process.

How we can help

We can support you in getting ready for these changes, including:

• delivering training on the new right of access
• developing practical strategies for responding to access requests
• advising on response notices and negotiation strategies
• drafting access agreements
• advising on privacy and data protection issues
• supporting wider employee and industrial relations strategies.

For further detail on how the ERA changes affect you, use our ERA tracker: Employment Rights Act – Walker Morris

If you need support or have any questions, please get in touch with Charlotte Smith, Andrew Rayment, Hannah Blood, Philippa de la Fuente or Hollie Firth.