The government has published its response to the consultation on its plans to grant trade unions a right of access to the workplace. While there has been some movement on issues of concern to employers (e.g. the timeline for negotiation of access agreements), the bulk of the proposals remain unchanged. Alongside the consultation response, the government has published a draft Code of Practice on trade union access, and has opened a further consultation on the draft Code.
Background
The Employment Rights Act 2025 (ERA 2025) aims to give unions a right of access to workplaces to allow them to meet, represent, recruit or organise workers (regardless of whether they are members of a trade union), and to facilitate collective bargaining.
It does this by establishing a process to facilitate the making of access agreements between employers and unions. There is the possibility for the CAC to order access based on default statutory terms where the parties fail to reach agreement and a fast-track approval process for agreements that meet certain criteria.
The government consultation on how these provisions should operate ran from 23 October to 18 December 2025, and the government published its response to the consultation, alongside a draft Code of Practice, on 8 April 2026. A consultation on the draft Code closes on 20 May 2026.
How will access requests operate?
Employers and unions are encouraged to seek to agree voluntary access arrangements as a starting point, before the union makes a formal request under the statutory scheme.
A union will have to make a request in writing, and an employer will have to respond in writing. Email is the preferred method in both cases. Access requests will have to specify whether physical or digital access (or both) is sought, the nature of such access (e.g. in person meetings, access to digital worker forums) and the rationale for this, as well as the support required from the employer to facilitate access. The draft Code includes a standard template access request that sets this out.
As to where access requests should be sent, the draft Code advises the union to direct requests to "the person or department at the employer with the authority to grant access to the workplace in question". However, there is a risk that requests sent to inappropriate recipients may slip through the net.
In our response to the consultation on behalf of our clients, we emphasised that the original proposed timeline for handling requests was too onerous. The government has taken these concerns into account, and extended the applicable timeframes as follows:
- Employer response period: 15 working days (increased from 5)
- Negotiation period: 25 working days (increased from 15)
- Deadline to refer to CAC where agreement not reached: 55 working days (increased from 25)
These timeframes may be extended by agreement. (Working days exclude Saturdays, Sundays, and bank holidays.)
The employer must state in its response whether it is agreeing to a request in full or in part, or rejecting it. Where the employer accepts all or part of a request, it must provide specified information about the workers covered by the request to help facilitate access. Where the employer rejects all or part of a request, it must provide reasons. The draft Code includes a standard template response.
If a request is agreed, the parties should confirm this to the CAC and record the agreement in writing. The parties must also notify the CAC if they agree to vary or revoke the agreement.
Applications to the CAC
If no agreement is reached within the negotiation period, either party can apply to the CAC to determine whether access should be granted.
Where access is sought on so-called model terms (which include at least five working days' notice for the first access visit, two working days' notice for subsequent visits, access on a weekly basis, and a two year expiry date for the access agreement), a streamlined process will apply, with the application being heard by a single person at the CAC rather than a panel.
The CAC must refuse access in the following limited circumstances:
- The employer has fewer than 21 workers (although the government is proposing to amend the law in 2027 to allow access to workplaces with fewer than 21 workers that are covered by sectoral collective bargaining, i.e. adult social care and school support staff)
- The access agreement does not provide for at least five working days’ notice for the first visit, and/or lasts longer than two years
- Granting access would be contrary to the interests of national security or would be likely to prejudice the prevention/detection of crime
The CAC may also refuse access where:
- The employer already recognises an independent union in respect of one or more of the workers to whom access is sought
- There is an ongoing statutory recognition process concerning the group of workers to whom access is sought
- An access request overlaps with an existing statutory access agreement covering the same group of workers
- There are multiple competing access requests pending (although there is some inconsistency between how this is described in the consultation response and the draft Code regarding whether a referral to the CAC must already have been made in relation to the first request in order for access to be refused on this ground, and this needs clarifying in the consultation on the draft Code)
- Granting access would require excessive resources from the employer, such as building new facilities, or procuring new IT systems
It is clear from the government's consultation response and the draft Code that the CAC should have regard to and expect unions to comply with all reasonable instructions given by the employer, including in relation to health and safety requirements, reasonable site security, identification and visitor protocols, and data protection and confidentiality obligations. However, there is no requirement for access agreements to include compliance with these measures as a condition of access. Nor is there any mention in the consultation response or the draft Code of employers' obligations to take all reasonable steps to prevent harassment of employees, and how this interacts with union officials' access to workers. This is an issue that we raised in our consultation response on behalf of clients and it is disappointing that the government does not appear to have taken it into account.
What will access look like in practice?
The draft Code provides additional detail of how access is expected to operate in practice, for example:
Digital access is defined as including the employer cascading union communications, online meetings and webinars held on existing platforms, and virtual Q&A sessions. The draft Code distinguishes between "indirect" digital access, where the employer acts as an intermediary between the union and workers, so no worker's personal data is given to the union, and "direct" digital access, where the union communicates directly with workers, having requested the personal contact details of workers to be covered by an access agreement. The draft Code envisages employers seeking workers' consent to the sharing of their personal data with the union under the UK GDPR, with the CAC able to disapply the direct digital access element of an access agreement if consent has not been obtained. This imposes a potentially significant burden on employers, and employers may wish to raise this in response to the consultation on the draft Code.
Weekly access must involve interaction, whether physical or virtual, e.g. a visit or meeting with a worker or group of workers. Sending an email, or administrative actions such as scheduling a meeting will not suffice. The draft Code clarifies that weekly access can be averaged (e.g. four consecutive days in a month), and timing may vary by shifts. It also notes that weekly access may not always be the most appropriate frequency, and the CAC may approve agreements that provide for access up to weekly.
Employers will be required to take reasonable steps to facilitate access, such as scheduling online calls, or moving chairs and tables to make space for a physical meeting in a suitable area, such as where workers take their breaks. However, employers will not be required to make significant structural changes. Access should take place during normal working hours and the draft Code explicitly refers to holding events during rest periods or towards the end of a shift in order to minimise disruption to the business.
Privacy of communications between the union and workers is prioritised, with the draft Code stating explicitly that employers must not attend access meetings unless invited, must not question workers about what was said, and must not pressure workers to disclose discussions. Employers are expected to inform unions of any CCTV systems that may record meetings, and take reasonable steps to protect meeting privacy, e.g. by disabling recording during meetings. Notably, the draft Code acknowledges that an employer may need to investigate the conduct of meetings in exceptional cases, e.g. of alleged harassment or damage to property.
Enforcement
The consultation response sets out a strengthened set of financial penalties for breach of statutory access agreements, with maximum fines of:
- £75,000 for a first breach
- £150,000 for a second breach
- £500,000 for third and subsequent breaches
When determining the appropriate penalty, the CAC must consider a range of factors, including the seriousness and duration of the breach, whether the breach was deliberate or inadvertent, the number of workers affected, the employer's size and resources, and any history of non-compliance.
In addition to/instead of issuing a fine, the CAC may also vary an access agreement, order a party to take remedial steps, and publicly identify offending employers.
What does this mean for employers?
It is helpful that the government has extended the timeframes for negotiation of access requests, and the draft Code does provide useful clarification on some practical points. However, negotiating the details of access arrangements, and facilitating those arrangements once agreed is still likely to impose a significant burden on employers. There are also various outstanding concerns, such as around the sharing of employees' personal data to facilitate direct digital access, and how employers should deal with the scenario where a union official behaves inappropriately during an access meeting or is accused of harassment. Employers are encouraged to respond to the consultation on the draft Code to raise these and any other issues of concern to them. That consultation closes on 20 May 2026.
Especially when combined with the ERA 2025 requirement to provide workers with a statement of their right to join a trade union, and the simplification of the trade union recognition process, the right of access has the potential to lead to greater union presence in many workplaces and an increase in the number of employees whose terms are determined by collective bargaining. The government's response to the consultation on the requirement to provide workers with a statement of their right to join a trade union is expected imminently and we will keep clients updated on key developments.
In the meantime, if you have questions about any of the trade union related reforms being introduced by the ERA 2025, please contact Philip Harman, Nick Chronias, or Louise Bloomfield.
