Employment Rights Act 2026: The New Trade Union Right Of Access - Will it matter?

The Government has now published its response to the “Make Work Pay: Trade Union Right of Access” consultation which means we are now one step closer to properly understanding what these new access rights really will be. It would be fair to say that the reaction from business groups has been less than favourable.  The IOD, for example, have said:

“The government’s response to the consultation shows little evidence of having taken regard of businesses’ legitimate concerns….at a time when unemployment is rising, job creation is stalling, and business confidence is at record lows, the government must do better in responding to employers’ concerns if it hopes to reverse any of those trends.”

What are the rights to request access?

Stage one: a trade union submits an access request (using a prescribed form) describing the access arrangements it is seeking. The employer will then have 15 working days to reply. Whilst some might say this is a fairly rapid response time, the government were initially pushing for 5 days, so in fairness there has been some pro-employer accommodation here.

Stage two: if the employer does not agree the request in full, the parties move into a negotiation period aimed at reaching agreement. The draft proposals now suggest there will be a further 25 working days for that stage.

Stage three: if no agreement is reached, the union can apply to the Central Arbitration Committee (CAC). The CAC will then determine what access must be granted and on what terms. It would seem as if the CAC application will need to be made within 55 working days of the original access request.

My own view is that the timescales here are very tight. In many workplaces the terms of access will be detailed and operationally quite cumbersome to arrange, and they will require input from multiple teams and/or people. Expecting that to all be negotiated within these timescales feels a little optimistic to me.

What is “access” likely to look like in reality?

What the CAC requires (or what the parties choose to agree) will vary substantially from workplace to workplace. The proposed law appears to assume that physical access could be as frequent as weekly, with the union meeting employees either in either groups or one-to-one. Employers will be expected to make available the kinds of spaces and facilities they themselves use when communicating with staff.  This could be anything from a canteen or auditorium for larger sessions, to break rooms, shop-floor areas or small meeting rooms for smaller discussions.

Digital access is another option for trade unions. Digital access is likely to mean online meetings are arranged through the employer’s usual e-platforms, or it could simply mean a request that the employer cascade factual union communications to their employees via email. Fairly complex issues of GDRP consent will arise when dealing with requests for the contact details of employees.

How far does this obligation to make physical space available go?  The suggestion is that whilst employers must take all practical, reasonable steps to make access work (which will include reconfiguring rooms) they are not expected to carry out “significant structural changes” to their premises.  Where an access request is expecting an employer to make such significant changes, this could be grounds for the CAC to reject it.

The concerning reality here, however, is that an employer may be faced with a choice between the lesser of two evils: paying for the costs of structural changes or paying for the legal representation (and potential adverse findings) of CAC proceedings. Unions may well be alive to the tactical advantage they have in this respect and aim high with their demands.

What powers will the CAC have?

More than I was expecting, to be honest. Even where the employer and union voluntarily agree the terms of an access agreement, the CAC will have jurisdiction over it.  If either side thinks the other has failed to comply, it can go back to the CAC for a ruling. The CAC can issue a declaration and direct the non-compliant party to do what the agreement requires. If breaches are serious or repeated, the CAC can impose financial penalties (which are paid to the Government, not the other party). The first penalty can be up to £75,000, which really is a staggering amount in all the circumstances.

But if a £75,000 fine for a first offence does not surprise the reader, what about the fact that by the third penalty a fine can reach £500,000?!  

Employers will need to be very carefully advised and considered when agreeing to the terms of an access agreement (simply to avoid CAC proceedings). The risk of agreeing to provisions that cannot actually be delivered upon is too great.

Once an access agreement is in place, it is noteworthy that neither party can simply withdraw from it (unlike a voluntary recognition agreement). The Government has, however, indicated that the CAC should not grant access unless the arrangement has an end date which is no later than two years.

Is this really a big deal for employers?

It really is. What strikes me is (a) how procedural the scheme is, and (b) how little standing a union needs in a workplace to trigger it. An employer can’t just brush off a request; it has to deal with it and do so quickly. There is no minimum membership level to be met before a union can ask for access. In fact, the provisions of this new law all seem designed to help a trade union build a presence where it currently has very little. I guess that was the government’s intention, so in that respect, they have delivered.  

The biggest reason that many private sector employers do not currently recognise a trade union is obvious: they don’t have to. The trade union lacks the numbers required to meet the thresholds for recognition, and without getting in front of the employees, they are not going to get those numbers. Everything may now change.

Any trade union seeking statutory recognition will surely now treat an access request as the natural first move: get into the workplace, meet people, recruit, and then build towards recognition. Recognition ultimately depends on majority support within the relevant bargaining unit. Access does not. Employee views are not a deciding factor at this stage, as the premise of the access laws is that employees can always ignore the union if they choose, but the employer now has a legal obligation to facilitate the opportunity to hear what the union has to say.  The days of employers believing that trade union issues do not apply to them, because of the belief that so few of their workforce are trade union members (or have any interest in becoming a trade union member) may soon be over.

There may be good news for some employers however: the rights of access discussed in this article are only going to apply to employers with 21 or more employees.

What next?

This new right of access is due to become law in October of this year, if the current implementation timetable for the Employment Rights Act 2025 is to be adhered to. We still do not have final law (only a draft Code of Practice) and consultation remains ongoing until 20 May, so there remains a lot to do between now and October legislatively wise.

Employers though should start considering and preparing: how will they respond to requests for physical or digital access? At Leathes Prior, the Employment Team are busy preparing for all things Employment Rights Act 2025, and regarding trade union issues have longstanding expertise in advising employers of both their legal and practical options. Please contact us if we can help.

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any specific circumstance.