From consultation to compliance: how the new trade union access regime is shaping up

Reforms contained in the Employment Rights Act 2025 (ERA) will allow trade unions to access workplaces either physically or digitally. This represents a significant new right for trade unions and employers will want to understand what the reforms mean.  

In October last year, the government launched a consultation to help it determine how the right should operate in more detail (see our blog). With the new right coming into effect in October this year, the government has now published its response to this consultation, which means employers now have more information about how the new right will actually work in practice. In particular, it sheds more light on:

• how trade unions will request access
• how and when employers will be expected to respond; and
• what happens if there is a breach of the new rules

Much of the practical detail about how the right will work on the ground has still to be determined. That will be set out in a new statutory Code of Practice and a separate consultation on the contents of that Code is underway. That consultation closes on 20 May 2026. 

In the meantime, the response to the October consultation gives employers enough information to reflect on the new right and how it may affect their operations, should they receive an access request.

What is changing – a recap

Currently, there is no right for a trade union to access an employer’s workplace to recruit and organise workers. If a trade union wants to access a workplace, that access needs to be agreed on a voluntary basis between employer and trade union. 

The ERA introduces a new statutory right of access for trade unions to access an employer’s workplace, either physically or digitally, to meet, recruit or organise workers or to facilitate collective bargaining. Digital access could, for example, require employers to cascade trade union communications as requested by the union, or facilitate virtual meetings. Employers need to be mindful, therefore, when negotiating access agreements (further details on this below) of who will be appointed to manage any agreed digital access mechanisms.  

Access would be agreed through a legally enforceable “access agreement”. This agreement may either be agreed between the employer and the trade union or, where the union and employer are unable to agree, will be as determined by the Central Arbitration Committee (“CAC”). 

In its response to the consultation, the government outlined the policy positions that it intends to reflect in the secondary legislation that will set out the statutory process for managing access agreements. This process will be supported by a statutory Code of Practice as referenced above. 

It is also worth noting that a trade union making an access request under the new rules will not require any minimal level of membership, in order for the request to be considered. Access agreements could, therefore, be used as a foot in the door, with a view to then building membership through more direct access to employees. 

It remains to be seen what resources trade unions will have available to make and manage multiple access requests across various fronts. However, it is worth noting the following key updates. 

How access requests will be made

One of the key themes running through the consultation response is the government seeking to strike a balance between consistency and flexibility. 

As to how a trade union can make an access request, we now know that:

• Access requests and employer responses will have to be made in writing, with email identified as the preferred method for doing this.
• The request and response will need to include certain prescribed information (with the detail to sit in secondary regulations) and a standardised template for access requests and responses will be introduced. Templates for access requests and responses will be included in the new Code of Practice, which unions and employers can opt to use. Whilst it doesn’t appear that this will be a mandatory template, if unions or employers opt not to use the available template, they will still be expected to include the prescribed information in their request / response.
• The proposed response and negotiation timeframes have been extended from what was originally proposed:
  • the employer will have 15 working days to respond to the trade union’s request for access – a welcome increase from the 5-day response time that was originally proposed
  • the negotiation period during which the employer and the trade union can negotiate to agree access terms has increased from 15 to 25 working days
  • where access cannot be agreed, either party will have a further 15 working days to request that the CAC makes the decision on access and the terms that will apply. 

Extending these timeframes is sensible from both employer and trade unions’ perspectives. When dealing with an access request, the employer will need time, in considering the request, to assess operational impact and potential health and safety issues, as well as time to prepare internal communications. The original timeframes were, in practical terms, unmanageably tight – particularly where no union access arrangement was already in place. 

Accessing the employer site

The consultation response also confirms the notice requirements a trade union must give ahead of an access visit:

• the union must give at least 5 working days’ notice before a first visit; and
• at least 2 working days’ notice for subsequent visits

Importantly, the government stresses that these notice periods are a minimum (described in the response as a “floor”), not a default. Employers and unions will be free to agree longer notice periods where that makes sense for the workplace. Again, more guidance is expected in the Code of Practice. 

In some cases, employees may be based at a third party site. This would be common in the security sector, for example, where organisations outsource their security requirements to external service providers. The current draft Code of Practice envisages that the employer in that scenario (ie the security company) would be required to take “reasonable steps” to facilitate access, which could involve engaging with the premises owner to agree access by the trade union to the security staff. The draft Code goes on to state that if the premises owner refuses access, the matter could be referred to the CAC, who might ultimately impose a requirement to facilitate access. This aspect of the new rules is not addressed in the current consultation response, however, it is being considered as part of the consultation on the Code of Practice; in particular, the consultation asks whether that section of the Code is clear and workable. It remains to be seen, therefore, whether this might change, but as it currently stands, this could present quite a significant requirement on owners of premises to facilitate access to their site for the purposes of trade unions engaging with contracted staff. 

The CAC’s role – and its limits

Where employers and unions cannot agree on access terms, the CAC can be asked, by either party, to step in to decide whether access should take place. 

There are mandatory grounds where the CAC must refuse access including:

• where the employer employs 21 employees or fewer
• where the proposed agreement does not provide for at least 5 days notice ahead of the first access visit
• where the proposed agreement is to last more than 2 years
• where granting access would be contrary to the interests of national security or would prejudice the prevention, detection or prosecution of offences

Separately, there will be circumstances in which it is not reasonable for the CAC to grant access including: 

• where granting access would require the employer to make significant structural changes to facilitate access – for example, where access would require brand new facilities or IT infrastructure
• where there is already a recognised union representing the workers that the applying union is seeking access to – this is intended to support stable industrial relations, and will likely be welcome news for those trade unions who are already recognised in workplaces
• where there is an ongoing statutory recognition process at the workplace or where a statutory access agreement with an independent union is already in place – this is intended to provide clarity and to prevent parallel processes running at the same time  
• where a second union issues an access request after a first union has already submitted a request covering the same or overlapping workers and the first has been referred to the CAC and is awaiting a decision – this is helpful for employers, as it means they will not have to deal with multiple overlapping requests

The consultation also asked whether there were any further matters that respondents thought the CAC should have regard to in making determinations on access. A range of suggestions were provided, and the response includes examples of matters that the CAC will be expected to have regard to, such as: 

• the type of workplace covered by the access agreement and whether provision for safeguarding needs to be included (this may be relevant to schools, for example)
• compliance with applicable health and safety requirements; reasonable site security arrangements; relevant qualifications or certifications (for example, DBS checks); and relevant legal obligations (for example, data protection / confidentiality)
• employers will be expected to take reasonable steps to facilitate access – this could include, for example, adapting existing facilities to enable access. The response notes that these steps should not require “material operational disruption”. In turn, the draft Code of Practice states that “access should not unreasonably interfere with the employer’s business”.  This will, therefore, be a factor that the CAC can take into account, however, we anticipate that it will be the employer’s burden to demonstrate that access would involve unreasonable business interference. The relevant section of the draft Code of Practice is being considered as part of the current consultation on the draft Code. 

These additional terms will be set out in secondary legislation.

Importantly, agreements should be limited to a period of no more than two years and the CAC should not grant access agreements without an expiry date -  the rationale for this being to offer clarity and flexibility to both parties – a defined end date allows for the arrangements to be revisited and so ensure they remain reflective of workplace requirements, or to allow for a natural end date. 

Enforcement and financial penalties 

Where a party is in breach of the agreement, the CAC has the power to issue financial penalties. These penalties are intended to address the risk of deliberate non-compliance by either party and the denial of worker access to trade unions.

Perhaps one of the more significant changes as a result of the consultation is that the government has increased the maximum penalty that can be applied where a party is in breach. 

Where an access agreement is breached, the CAC will be able to impose penalties of up to:

• £75,000 for a first breach
• £150,000 for a second breach
• £500,000 for a third breach or subsequent non‑compliance under the same agreement 

While the criteria for setting penalties will sit in the Code of Practice, the government has already indicated that, in deciding the level of penalty, factors will include:

• the seriousness and duration of the breach
• the reasons for it
• the number of workers affected
• the size and administrative resources of the employer
• any history of non‑compliance

The response is clear that this regime is designed to operate as a “clear and credible deterrent”. In practice, it marks a very significant shift from the current system, which relies heavily on voluntary cooperation and relatively light‑touch enforcement.

Next steps for employers

The new right to access will take effect this October, and whilst the Code of Practice will include important detail, employers now have enough information to start to prepare: 

For example:

• Industrial relations strategy: if, as an employer, you anticipate that a trade union may wish to take advantage of this new right, have you considered how this aligns with your wider industrial relations strategy and any potential request for voluntary recognition?
• Proactive management: should you consider taking pre-emptive action by proactively approaching a trade union of your choice to explore agreeing access arrangements?
• Ownership and governance: who in your organisation should be designated to receive, assess and respond to access requests? Defined response and negotiation periods mean requests can’t simply sit in an inbox.
• Operational planning: how might access be facilitated in practice, both physically and digitally, without disrupting business operations or breaching confidentiality and/ health and safety requirements?
• Risk management: given the level of potential penalties, how will compliance be monitored and potential or actual breaches be escalated internally?
• Employee engagement: even if you do not believe you are likely to be approached by a trade union for access, consider reviewing employee engagement strategy and feedback mechanisms – do employees feel their views count and that they have an ability to influence decisions where appropriate? 

We have been advising employers across all sectors on the impact of the new Employment Rights Act 2025. If we can help your organisation with any of the issues raised in this update or with any other aspect of the new Act, please contact me or get in touch with any other member of the Burges Salmon Employment team.

Want to know more about the Employment Rights Act 2025, our hub is a treasure trove of practical employer resources.

The Employment Rights Bill will introduce a new framework for trade unions to access workplaces physically, and to communicate with workers in person or digitally.

https://www.gov.uk/government/consultations/make-work-pay-trade-union-right-of-access