Employment Rights Act 2025: trade union right of access

The Employment Rights Act 2025 introduces a number of significant changes affecting how businesses and trade unions interact. We have previously written about the changes to the law relating to trade union activity and industrial action. This article focuses on the new framework being introduced to provide trade unions with the statutory right to access workplaces. The new right has significant implications but has been overlooked by many employers amongst the plethora of other changes being introduced under the Act.

The new right of access to workplaces is expected to come into force in October 2026, and the Government has recently published a draft Code of Practice addressing how it will work. The draft Code of Practice is subject to consultation until 20 May.

In this article, we explore how the new right will operate in practice, including how access agreements are to be requested, negotiated and determined by the Central Arbitration Committee (CAC), as well as how they will be operated and enforced.

Who can apply?

Currently, there is no right for trade unions to enter an employer’s premises without consent. Under the new scheme, any trade union with a certificate of independence can apply for access.

The only absolute exception is where the employer has fewer than 21 workers, but that will be assessed with reference to the overall size of the business, so a small site within a larger employer will still be in scope.

Notably, while the fact that an employer already recognises a trade union (or is subject to an ongoing statutory recognition process) is identified in the draft Code of Practice as a potentially valid reason for a request to be rejected, it is not an automatic barrier. Indeed, it might provide a new route of entry for trade unions where they previously had insufficient membership to seek recognition (e.g. in relation to a specific category of staff). Therefore, the new scheme provides a means by which several trade unions could seek access arrangements to the workplace of the same employer. The draft Code of Practice also recognises that two or more trade unions may make a joint access request.

Why might a trade union want access to your workplace?

As already stated, trade unions do not currently have a statutory right of access to the workplace. Therefore, in the absence of any voluntary or compulsory recognition arrangements, trade unions have little opportunity to exercise their functions. The Government is introducing the new access scheme to change this and considers that access will enable unions to contribute positively to workplace culture.

Access requests must align with prescribed statutory purposes, which are to meet, support, represent, recruit or organise workers, whether on an individual basis or to facilitate collective bargaining. These purposes are capable of being widely construed, but they expressly do not include organising industrial action.

Importantly, there is no minimum interest requirement (i.e. from staff who are members) for a trade union to be able to request access. As a result, employers that have previously discounted the risk of trade union recognition may now face requests for access, with unions using this as an opportunity to recruit members as a precursor to a recognition request.

What is the timetable for an access request?

The draft Code of Practice encourages employers and trade unions to use existing voluntary access arrangements and to agree new access arrangements on a voluntary basis. However, where agreement cannot be reached, the new right will be achieved via the statutory process, with suggested forms and model terms included in the draft Code of Practice.

Employers will have up to 15 working days to respond to an access request and should use the response template included in the draft Code of Practice. The parties will then have 25 working days to negotiate in good faith, though they may continue beyond 25 days if discussions are productive.

No access agreement may last longer than two years, and if an agreement cannot be reached, the matter can be referred to the CAC to determine the matter. In doing so, the CAC must balance the right of the trade union to enter a workplace with the employer’s right to operate without unreasonable interference.

However, the draft Code of Practice emphasises that the Government’s intention is that trade unions should have access to workers. As such, the presumption will be in favour of granting access requests.

What are the notice requirements?

Trade unions are required to provide not less than five working days’ notice before the first access. For routine visits, the model expectations in the draft Code of Practice include at least two working days’ notice. Employers may be concerned that such short notice requirements will be operationally challenging and so may seek to negotiate longer notice periods with trade unions.

Does the draft Code of Practice include model terms?

Yes, although the model terms are relatively limited in scope and so parties will doubtless seek to negotiate changes that reflect the specific workplace in question.

However, where a request aligns with model terms, the CAC is more likely to regard it as less complex and more likely to grant access, so trade unions will likely be cautious to stray too far from the model terms. In this regard, it is notable that the access frequency of up to weekly is treated as a model term, and “weekly access” means an actual meeting/visit (physical or virtual), not just sending an email.

While parties are free to negotiate and agree derogations, trade unions are likely to utilise the model terms in order to reduce the ability of employers to refuse access. Where employers seek to resist approaches made using the model terms, they will need to have cogent evidence to justify their position against the Code’s reasonableness framework.

What level of access must the employer provide?

While the level of access is a matter of negotiation, the draft Code of Practice explains that access should be provided both physically and digitally to best reflect modern workplace practices. It should be granted to workers at their actual workplace and during normal working hours. However, the draft Code of Practice does not prescribe the duration of any access meetings, so this will be a matter of negotiation.

Employers must take reasonable steps to facilitate access, and this might include using existing accommodation/facilities, arranging online calls and rearranging furniture. Importantly, while employers are not expected to make significant structural changes to premises or IT systems, there will be a requirement to provide digital access via existing employer channels. For example, employers will be required to cascade union communications via email and facilitate online meetings via existing platforms (e.g. MS Teams).

In addition, the draft Code of Practice provides guidance as to what physical access arrangements should include. For example, it states that if the employer typically holds large workforce meetings in a specific meeting room, then the same facilities should be made available to the trade union for the purposes of access.

What about workplace security, confidentiality and data protection?

Employers faced with an access request will naturally be concerned with workplace security, but unless access will present a genuine risk to national security, or the detection or investigation of offences, this will not be a valid reason to reject a request.

The draft Code of Practice states that employers should respect the privacy of access meetings, and employer representatives must not attend unless invited by the union. Where surveillance equipment could record meetings, employers should inform the union (subject to security constraints) and discuss measures to protect privacy, with limited exceptions for unavoidable security/health and safety needs.

To strike a balance between the employer’s concerns and the union’s access rights, employers will need to identify approved private spaces and adopt a standard operating procedure to address matters such as booking, sign-in and induction. Furthermore, the draft Code of Practice recognises that organisations such as schools will have specific safeguarding requirements and that these employers will reasonably be able to require trade union officials to complete satisfactory enhanced Disclosure and Barring Service checks before being able to access the workplace.

In addition, employers will be concerned to ensure data protection (GDPR) compliance. To facilitate direct union contact with workers, employers may require the workers’ consent for sharing contact details. Otherwise, where digital access will be indirect via staff intranet or all-staff email, and will not include disclosure of personal information, consent is unlikely to be required.

How will the new scheme be enforced?

As already stated, the CAC can be asked to determine an access request in the event of a failure to agree. In addition, allegations of breach of an access agreement can be referred to the CAC for determination, and if upheld, it can lead to penalty fines for repeated non-compliance. The fines start at £75,000 for the first breach, rising to £150,000 for a second, with any third or subsequent breach resulting in a maximum £500,000 penalty.  As such, they represent a significant deterrent.

The Birketts view

The new right of access by trade unions to the workplace represents a significant extension of trade union rights. It has the potential to impact the vast majority of workplaces, even those where there is either already recognition or where there was previously no prospect of it. Therefore, all employers are strongly advised to gain an understanding of how the new scheme will operate.

From a practical perspective, employers should identify someone to take responsibility for accepting and progressing a request for access. They should be appropriately trained and should undertake a proactive audit of the workplace to identify any specific security and IT/premises issues. This will prepare the employer in the event an access request is received.

Where employers already recognise a trade union (voluntarily or otherwise), they should also ensure they are fully appraised of the new scheme and are advised to sensibly consider requests to modify any existing access arrangements. If not, a formal access request is likely to follow.

Alternatively, where there is no existing trade union interest or involvement, employers may wish to explore other options for workforce engagement, thereby minimising the risk of an access request being made.

Look out for details of our forthcoming training on the new trade union rights and protections, which we will be offering shortly.