From October 2026, the Employment Rights Act 2025 (‘ERA 2025’) will introduce a new statutory right for trade unions to access workplaces (physically or digitally) for the purposes of meeting, supporting, representing, recruiting or organising workers or to facilitate collective bargaining. This is a key element of the Government’s trade union reforms which aims to give unions the opportunity to gain access to workplaces which have previously not been unionised. This will enable them to try to build up support for an application for statutory recognition, forcing the employer to collectively bargain.
The Government has now published its response to the consultation on the right, alongside a separate consultation on a draft statutory Code of Practice. It is clear from the response that unions will not need any particular level of membership or support to request access to groups of workers, potentially across multiples sites. The timescales for responding to a request are short and in the absence of agreement an application can be made to the Central Arbitration Committee (‘CAC’), where the default position is likely to be to allow access. Breach of a statutory access agreement can lead to financial penalties as high as £500,000 (where there are multiple breaches).
We are still waiting for regulations setting out the details, but employers should take steps in advance of October to prepare for this major change in the industrial relations landscape.
In this article we cover the key components of the new right, explain why the potential significance of this should not be overlooked by employers, particularly in traditionally non-unionised sectors and what steps they should be taking to prepare.
What is the New Right and When Does it Apply?
Currently, trade unions have no right to access workplaces, with access usually dependent upon voluntary arrangements. From October 2026, the Government’s reforms will create a statutory framework for both physical and digital access.
The new right will enable any independent trade union to make a request to an employer for access to any group or groups of workers of that employer, across one or more workplaces (the ‘Target Group’). There is no need for the union to show any level of membership within the Target Group or to demonstrate any desire for union access within the group.
The employer must have at least 21 workers in order for the CAC to approve a request for access. However, it appears likely that this test will be applied at a group level – including workers of associated companies (at least if they ordinarily work in Great Britain).
The purpose of the request is to allow the union to access the company’s workforce, both physically and/or digitally for the purposes of meeting, supporting, representing, recruiting or organising workers, or to facilitate collective bargaining. It does not extend to allowing access for organising industrial action.
What is the Process?
The draft Code provides that trade unions should seek to agree terms of access on a voluntary basis, before using the statutory procedure. A voluntary agreement would not be enforceable by the CAC, but there is no presumption that it would prevent another union being awarded statutory access.
Where a trade union wishes to seek statutory access, the following process will need to be followed:
- Union request – The union must make a request to the employer in writing, using a standardised template form setting out details of the access requested. The request should usually be made by email, and the draft Code suggests it should be sent to “the person or department with authority to grant access.”
- Employer response – The employer must respond in writing (again using a standard template form) within 15 working days either accepting or refusing the request (in full or part) and providing specified information. The parties can agree to extend the response period.
- Negotiation period – If the employer does not agree the request in full, there will be a period of negotiation of 25 working days for the two parties to agree the access terms. The draft Code of Practice notes that the parties can continue to negotiate beyond the 25-day negotiation period without the need to apply to the CAC for an extension.
- CAC determination – Where agreement is not possible (or the employer doesn’t respond), an application can be made to the CAC for a determination as to access. This application must be made within 55 working days of the original access request being made.
These periods are slightly longer than the Government originally proposed, but will still be challenging for many employers, particularly if the request is complex.
When Will the CAC Order Access?
The CAC will make its decision based on five ‘access principles’. A key principle is that physical and/or digital access should be granted “in any manner that does not unreasonably interfere with the employer’s business.” Access should only be refused completely “where it is reasonable to do so in all the circumstances.” In effect, this appears to mean that the default position will be to grant access – and to grant both physical and digital access, if requested – unless there is good reason not to.
There are a handful of exceptional circumstances in which the CAC must refuse a request for access, including where access would prejudice the national security of the UK or the investigation or detection of offences.
There will also be some narrowly defined circumstances where it may be reasonable for the CAC to refuse access. It appears that in these circumstances there will effectively be a presumption that access will be refused, unless the union persuades the CAC otherwise. These, include where:
- An independent trade union is already recognised, or a statutory recognition process is ongoing, concerning one or more of the workers in the Target Group
- There is already a statutory access agreement in operation in relation to one or more workers in the Target Group
- The employer receives two or more overlapping requests from different unions, but no statutory access agreement is in place
However, the draft Code provides that two or more unions can make a joint application, if they wish to co-operate.
What Will Access Involve?
Access can be physical, digital or a combination. Digital access can involve either a virtual meeting with workers or sending electronic communications – either directly (where the employees agree) or indirectly (cascaded by the employer).
The Government will set out ‘model terms’ for access agreements. There is no requirement to include these terms, but if they are requested by the union, it is more likely that the request will be granted and more likely that an expedited CAC procedure can be followed to consider the request. Therefore, they are likely to be influential. It appears that these model terms will include:
- Access to workplaces on up to a weekly basis (which may not be at the same time or day each week). The draft Code states that access in this context means a visit or meeting with a worker or group of workers, whether in person or virtually and that cascading an email on behalf of the union will not amount to weekly access (so could be more frequent).
- Requiring the union to provide a minimum of two working days’ notice before each access visit (other than the first for which five working days’ notice must be given).
It will generally be reasonable to expect union officials to comply with existing arrangements that visitors to the workplace have to comply with and with reasonable instructions, for example as to health and safety, site security, identification and visitor arrangements and legal obligations (such as in relation to data protection and confidentiality).
Employers will be required to take reasonable steps to facilitate access, such as making available existing meeting spaces, communications channels or facilities ordinarily used for engagement with workers in the Target Group, facilitating access through existing digital channels and taking reasonable administrative steps (e.g. arranging building access/passes). However, they will not be required to make significant structural, technological or operational changes (e.g. constructing new meeting spaces or procuring new IT systems).
The draft Code sets out additional practical guidance on how access should work in practice. The Code is not binding but will be taken into account by the CAC in considering applications and so will be influential. Guidance includes:
- Employers must ensure so far as reasonably practicable that communications between a union and workers are private
- Where practicable, access should take place at the workers’ actual workplace and location
- Where suitable, the employer’s typical methods of communicating with the workforce should be used as a benchmark for determining how the union should communicate with members of the same workforce
- Digital access may be alongside or instead of physical access and can be through the employer’s existing communications channels (although is not limited to that), with the starting point being that the employer would cascade union communications to their workers, or would facilitate an online meeting in which the union could run a presentation or Q&A, for example
- Access should usually take place during normal working hours, but at times which minimise any possible disruption. Employers are encouraged to align organisation of access with events that involve significant proportions of the workforce during work time, such as training courses
Access agreements must expire after a maximum of 2 years, but where the parties agree that continued access would be beneficial, they will be able to apply jointly to the CAC to vary the agreement and extend or reset its duration.
Access to Third Party Premises
In some cases, an employer’s workers will be based on premises which are under the control of a third party e.g. where a company has outsourced security or catering services and employees of the service provider are based on the company’s property. In these circumstances, an access request in respect of the outsourced workers would need to be made to the service provider.
The draft Code explains that in these circumstances the employer (i.e. service provider) will be required to take reasonable steps to facilitate access to the premises where the workers are based. This would involve engaging with the company responsible for those premises. There is no specific obligation on that company to co-operate, but the draft Code explains that if the engagement does not result in arrangements for access being made, it would be open to the employer or the union to refer the access request to the CAC. The CAC can then choose to order access to the premises where the workers are based and if the company responsible for those premises does not comply, the union or employer can use the CAC enforcement procedure, which can lead to fines against the company responsible for the premises.
How are Statutory Access Agreements Enforced?
A point that should not be underestimated is the CAC’s enforcement powers. Where there has been a breach of a statutory access agreement, the CAC will be able to vary the agreement (e.g. by extending the agreement) and/or order a person to take steps to ensure access in accordance with the agreement. If there is a further breach or non-compliance, fines can be awarded. The Government has confirmed that a three‑tier enforcement system will apply with fines ranging from up to £75,000 for a first penalty, £150,000 for a second penalty, and up to £500,000 for subsequent breaches. The level of penalties is designed to ensure that “rogue employers do not treat financial penalties as a manageable cost of non-compliance and deliberately deny workers the access to trade unions.”
The CAC will consider a range of factors in deciding the level of a fine, for example the gravity and reasons for the breach, the number of workers affected, any history of non-compliance and the administrative resources of the liable party. The level of fines emphasises the need for employers to take great care in ensuring the terms of any access agreement entered into are workable in practice and can be complied with.
What Should Employers do to Prepare?
The new right to request access will not only impact employers who are already familiar and used to engaging with unions – it will affect all employers. The aim is to allow unions to gain access to workplaces where they have not previously had members to enable them to recruit, organise and potentially to lay the foundations for a statutory recognition request. The ERA 2025 has also made changes to the statutory recognition procedure, to make it easier for unions to use the process to compel recognition.
Employers will need to be alive to this across the board and be prepared to engage with unions, perhaps for the first time. The time periods laid out do not allow a great deal of time for employers to react upon receipt of an access request from a union – 15 working days is not very long at all to coordinate across the various departments who may need to be engaged in responding, such as HR, operations, IT, security and health and safety. This may be felt particularly acutely in multi‑site or matrix organisations.
Employers should therefore be thinking before October 2026 about how they might deal with access requests. For example, they may wish to:
- Identify the stakeholders who would need to consider a request and take steps to ensure that a request will be identified and directly swiftly to the relevant people.
- Identify how physical and digital access could be facilitated in practice at different sites and what terms may be workable, as well as familiarising themselves with the standard forms appended to the draft Code of Practice.
- Review the potential for union access as part of the overall industrial relations strategy. Employers will need to consider the overall approach they wish to take to union access, including whether to agree to voluntary access and how this sits within their wider industrial relations strategy. In practice, access requests may be linked to efforts to secure recognition. Some employers might choose to recognise or enter into a statutory agreement with a union where they already have a constructive relationship, as this may provide greater clarity and stability around engagement (although it will not automatically preclude access by other unions). Employers might also want to take the opportunity to review the effectiveness of their existing engagement channels and employee relations, recognising that well‑functioning internal channels can play an important role in addressing workforce issues at an early stage.
Coupled with the other trade union reforms set to take effect in October 2026, these provisions have the potential to lead to greater union presence and membership in workplaces. Employers should consider that access will not just be a legal compliance issue, but also an employee relations and communications matter. How employers respond (including tone, openness, consistency across sites, and alignment with existing employee voice structures) may shape perceptions internally and externally.
Next Steps
The consultation on the draft Code of Practice is open until 20 May 2026 and responses can be submitted here.
Regulations will also be introduced setting out the detailed requirements which will be laid in Parliament with the final draft Code of Practice for approval. The Government has said that the new rules introducing the right to request access agreements are expected to take effect in October 2026.
Don’t forget too that the Government is also introducing a new obligation on employers to inform workers of their right to join a union (which we have written about previously here) and which is also expected to come into force in October 2026.
For the latest developments in respect of the ERA 2025 reforms, please visit our Reform Hub.
Please contact your usual Littler contact if you would like any support with preparing your business for the upcoming changes. For any client training queries, please contact Natasha Adom.
