The Employment Rights Act 2025: new trade union right of access to workplaces

The Employment Rights Act 2025 is introducing a new statutory right for trade unions to access workplaces. From 30 October 2026 qualifying trade unions will be able to request physical and digital access to meet, support, represent, recruit or organise workers and/or to facilitate collective bargaining, but not to organise industrial action.

New right of access

Currently trade unions do not have a general right of access to workplaces – access (other than when accompanying employees to disciplinary and grievance hearings / acting as statutory representatives) is based on voluntary arrangements and the terms of existing recognition agreements. This is set to change from 30 October 2026 when the Trade Unions (Right to Access Workplaces) Regulations 2026 and the Trade Unions (Right to Access Workplaces) (Required Information) Regulations 2026, along with an accompanying Code of Practice, are due to come into force. 

Qualifying trade unions (those with a certificate of independence issued by the Certification Officer) will be able to request physical and digital access to meet, support, represent, recruit or organise workers (whether or not they are members of a trade union) and/or to facilitate collective bargaining, but not to organise industrial action.

The Code encourages parties to use existing voluntary arrangements or agree new ones outside the statutory regime. However, if this is not possible, the statutory process will be as follows (in summary):

1. Access request: a qualifying trade union can submit an access request which must be in the prescribed form, contain certain minimum information and be delivered to the employer in a prescribed way.
2. Employer response notice: the employer must respond within the response period (15 working days), agreeing or disagreeing in whole or in part. The response must be in the prescribed form, contain certain minimum information and be sent to the union in a prescribed way.
3. Negotiation period: the parties then have 25 working days to negotiate and agree terms. Any agreement is recorded in writing and notified to the Central Arbitration Committee (CAC).
4. Application to the CAC: if no response notice is issued or no agreement is reached, either party can refer the matter to the CAC. The application must be made in the prescribed form and by end of the 55th working day after the day on which the access request is given (can be extended to 70^th day if not reasonably practicable).
5. CAC determination: the CAC decides whether access is granted and on what terms, having regard to the access principles. These principles include the following: trade union officials should be able to physically enter a workplace or communicate with workers (or both) for any of the access purposes in any manner that does not unreasonably interfere with the employer's business; and employers must take 'reasonable steps’ to facilitate access (examples in the Code include creating online calls or moving furniture to make space for a physical meeting or presentation).

Restrictions on access

An access agreement cannot require physical entry into dwellings, or the disclosure of personal data without consent or in breach of the data protection legislation.

The CAC must refuse access in certain circumstances including:

• if the employer, along with any associated employer(s), employs less than 21 workers on the day on which it receives the request (or an average of less than 21 workers in the 13 weeks ending with that day);
• if the proposed agreement does not provide for at least 5 working days’ notice of the first occasion of access; and
• if the duration of the proposed agreement is longer than 2 years.

The Regulations state that it will be reasonable for the CAC to refuse access if there are overlapping access arrangements, multiple access requests or if access would prejudice the health and safety of any person.

When considering an application, the CAC must take certain factors into account including existing visitor arrangements; the type of workplace; whether safeguarding provision needs to be included; and if there is a third party whose co-operation is required to facilitate access, whether the employer has contacted that third party, and taken reasonable steps in order to secure that co-operation.

Model terms

If the government’s model terms are used, it is more likely that the CAC will grant access. These include:

• At least 2 working days’ notice for access (on any occasion after the first time, which requires 5 days’ notice);
• Weekly (or less frequent) access;
• Provision of existing accommodation and other facilities as is reasonable in all the circumstances;
• Privacy of direct communications between workers and union officials;
• Requiring union officials to comply with the employer's reasonable instructions.

Enforcement

If either party breaches an access agreement, the CAC may investigate and issue enforcement orders. Complaints generally must be brought within three months of the alleged breach. If a complaint is well founded the CAC can vary the access agreement or order specific steps. If there is a subsequent breach within 12 months, or an order is not complied with, fines can be imposed: up to £75,000 for a first penalty order; up to £150,000 for a second penalty order under the same agreement; and up to £500,000 for repeated non-compliance. When determining the appropriate penalty, the CAC must consider factors such as the seriousness of the breach, the number of workers affected, the reason for the breach and the size and resources of the party in breach.

In practice

These changes represent a fundamental shift in the employee relations landscape. There will be a presumption in favour of access, the objective being to empower unions to positively contribute to workplace culture and lead to more constructive industrial relations. The measures will enable unions to promote the benefits of membership and ultimately are likely to lead to more unions being recognised, whether on a voluntary or statutory basis. Read our earlier blog on the most recent trade union statistics.

Particularly given the relatively short timescales in the statutory process, employers should familiarise themselves with the new provisions now, allocate responsibility for responding to access requests and gather data on which areas of the business requests are most likely to come from and what types of access could be offered.

Please contact our Employment and Immigration lawyers for more details of the new access right, and information on other trade union and industrial action reforms including the new duty to provide workers with a statement of trade union rights. 

Workbox by Brodies users will find a new page on the Trade Union Right of Access - if you would like a demo please get in touch.