It will have escaped nobody’s attention that the Employment Rights Bill, which has been passed by Parliament and is now the Employment Rights Act, is a significant overhaul of employment law and one which will change the landscape for both workers and employees in a variety of ways.
One of its measures is the proposal to grant trade unions greater access to workplaces. The intention of the government in proposing these changes in to strengthen workers’ voices and modernise industrial relations.
However, this also poses practical questions for both employers and unions, both of whom will be affected by the new measures.
The government believes that empowering trade unions to recruit, represent and organise workers more effectively is important as historically, they have faced barriers which stop them engaging with employees, particular where the workplace is non-unionised. Now, the Act will address this by introducing a statutory framework for workplace access.
What’s proposed?
The Act gives trade unions a legal right to access workplaces for specific purposes:
- Meeting and supporting workers
- Recruiting and organising members
- Facilitating collective bargaining
It is important to note that this right can’t be used by unions to organise industrial action.
Access is defined as physical (on-site visits, subject to certain conditions) or digital (via emails or virtual meetings through such platforms as Zoom or Teams).
Access agreements
In order to make the right of access work, both employers and unions will be encouraged to enter into what are known as ‘access agreements.’
These will set out:
- The scope of the proposed access (including the number of union members for whom access is being sought and their location)
- Why it is being sought
- The type of access
- When it is proposed to begin it
- How often the access will occur (in government consultation documents, it’s proposed that weekly access would be counted as reasonable)
- The dates on which the access will take place
- What notice would be required for access (a minimum two days has been proposed by the government )
Rather than just a verbal agreement, the government proposes that both the initial request from the union and the response from the employer must be made in writing, although there will be the option of using a standard template which will be included in a new statutory Code of Practice (coming in 2026). This will have the advantage of covering all the requirements set out in the new law.
Timelines and dispute resolution
In the Act, strict timelines for access requests are set out:
- It’s intended that the employer should have five working days to respond to a union access request. If they reject the request, they can’t do so for no reason – they have to justify their refusal.
- After the reply, a negotiation period begins. This will last a maximum of fifteen days.
- If, at the end of this period, the employer and union can’t reach an agreement, then the union has 25 days from the initial access request to refer the matter to the Central Arbitration Committee (CAC).
What is the Central Arbitration Committee?
The CAC encourages fair and efficient arrangements in the workplace by resolving collective disputes in England, Scotland and Wales. This is done either by voluntary agreement or through a legal decision if it turns out to be necessary.
The CAC is an independent body with statutory powers. It’s responsible for (amongst other things)
- the statutory recognition of trade unions
- the disclosure of information for collective bargaining
- applications and complaints related to information and consultation arrangements
They also offer voluntary arbitration in collective disputes.
When coming to its decision, the CAC will look at factors such as business disruption and proportionality then decide whether access should be granted.
Employer resources
Under government proposals, an employer won’t have to set aside more resources than are required under the Act to permit access. They won’t have to earmark a meeting room or add new IT systems for this purpose – although they can if they want.
Enforcement and penalties
If an access agreement has been settled on and then either party fails to comply, the CAC will be given the power to vary the agreement, make a declaration or order the errant party to comply.
If a breach is repeated, the CAC will have the power to fine the party in breach of the agreement. The suggested cap for a first breach is £75,000. For repeated breaches, the cap will increase to £150,000.
How long will the agreement last?
It’s proposed that a statutory access agreement, once set up, should expire after two years. This means unions and the employer will need to begin a new process of negotiation although if nothing has materially changed, this should be a formality.
What about smaller businesses?
The latest government proposals say that if a business has fewer than 21 workers, it will be excluded from the requirement for compulsory access. This limit is very much in line with existing law on union recognition in workplaces.
What to do now
Although it’s not proposed that this aspect of the Act will come into force before October 2026, employers would be wise to start preparing now so that they’re not caught on the hop when the law changes. There are several areas where early action will reap dividends:
Map your workforce
Time to take a look at which areas of your business could be the ones where unions might want access. Once you’ve got that established, you should start to prepare for potential access requests.
Draft a template agreement
When the statutory Code of Practice is published, you’ll need to look at what it contains and, using it as a guide, create a draft access document that you can use when needed.
Train managers
Since your managers will likely be the first point of contact for any union request for access, you’ll need to start planning how to train them so that they understand the new requirements, including the timeline for responding to requests.
Plan for digital access
If the union decides that it wants to request digital access, will you have the infrastructure or facilities in place to cope with that? You need to decide how you’re going to handle virtual meetings or email comms.
Monitor updates
As the implementation date approaches, keep an eye on government guidance, the Code of Practice and any updates. Speak to your legal advisers about what you need to do.
