The Employment Rights Act 2025 incorporates a significant overhaul of trade union law in the UK. With trade unions now benefitting from reduced restraints on industrial action, reduced recognition thresholds, and new rights being introduced across the board, employers across all sectors are likely to feel the impact of these reforms. One of the most practically significant changes is the introduction of a statutory right of trade union access to the workplace, expected to come into force in October 2026. With the consultation on a draft Code of Practice relating to this right now closed and implementation only a few months away, the window of opportunity for employers to prepare strategically is now, and those who act early may be better placed to manage requests on their own terms.
The New Right of Access
A new section 70ZA of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”) will introduce access agreements between a trade union and an employer, under which union officials will be able to enter a workplace or communicate with workers, both physically and digitally. Digital access is defined broadly and may include holding online meetings or requiring employers to circulate union communications. The right applies to employers with 21 or more workers and does not require the union to demonstrate any existing level of membership within the targeted employer’s workforce. One or more unions may submit a joint access request. Access may be sought to meet, support, represent, recruit and organise workers, whether or not they are union members, and to facilitate collective bargaining. It does not extend to organising industrial action (though it may be difficult for employers to police this exclusion in practice).
The Process
The statutory timetable to negotiate an access arrangement is tight. Following a written access request from a union, the employer has 15 working days to respond (though the employer and union may mutually agree an extension to this period). A negotiation period of 25 working days then follows, and if no agreement is reached, either party may refer the matter to the Central Arbitration Committee (“CAC”) within 55 working days of the initial request. The employer’s response must state whether the request is accepted in full, in part or declined, and if declined, the reasons for doing so. Employers must also confirm whether they have received an access request from or are in negotiations with any other trade union at the time. Importantly, the CAC will proceed on the assumption that some level of access should be granted; outright refusal is unlikely to be upheld.
Employers may decline access where that is reasonable in the circumstances. The draft Code of Practice gives the following examples: where another independent union is already recognised, where access would require excessive resource allocation, where insufficient notice has been given, or where the union refuses to comply with the employer’s relevant policies. Where an employer grants access, it must take reasonable steps to facilitate it – for example, by arranging for the use of meeting spaces or setting up virtual calls – but is not required to make major structural changes to its workspaces or IT systems.
No access agreement may last longer than two years from the date it comes into force. Access agreements cannot be unilaterally revoked during their term; any variation or revocation requires the joint agreement of both parties and joint notification to the CAC.
Enforcement
All access agreements, whether voluntarily negotiated or imposed by the CAC, must be lodged with the CAC and are enforceable through the CAC process. When a dispute arises regarding an access agreement, the parties can ask the CAC to determine the dispute. The draft Code of Practice indicates that, for an initial breach, an application must be made within three months of the date when the matter complained of is alleged to have occurred. The CAC may vary the agreement, declare the complaint well-founded, or order specific steps to be taken.Where there is a further breach within 12 months, financial penalties apply: up to £75,000 for a first penalty, up to £150,000 for a second, and up to £500,000 for any subsequent breach. The CAC also has the power to publish information relating to any penalties imposed, including the name of the liable party.
Importantly, access agreements are not legally enforceable by injunction; the CAC process is the exclusive route to enforcement.
Further Reforms in October 2026
The right of access does not arrive in isolation. A new section 136A of TULRCA will also require employers to provide all workers with a written statement confirming their right to join a trade union, issued alongside the section 1 Employment Rights Act 1996 statement of employment particulars and at other prescribed times (which will be set out in regulations). Failure to comply will attract a remedy under section 38 of the Employment Act 2002, with a minimum award of two weeks’ pay. Consultation on this new obligation closed in December 2025 and the government’s response is expected to confirm the content, form, manner and frequency of the statement.
Additionally, a new category of trade union equality representative will have the right to paid time off under a new section 168B of TULRCA, for purposes including promoting equality in the workplace, arranging equality training, and consulting with the employer on equality matters. This right only applies where the trade union has given the employer written notice that the employee is an equality representative, and where the employee has undergone, or will undergo within the next six months, sufficient training to carry out those activities. In any dispute about whether time off was reasonable, the burden of proof will fall on the employer.
Furthermore, a new section 168(3A) of TULRCA will impose an obligation on employers who permit employees to take time off for trade union duties to provide, upon request, such accommodation and other facilities as are reasonable in all the circumstances for carrying out those duties or undergoing the relevant training, having regard to the Acas Code of Practice. A corresponding right for employees to complain that an employer has failed to provide such facilities will also be introduced.
What Should Employers Be Doing Now?
The coming months before October 2026 present a genuine opportunity to get ahead of these reforms. Employers should consider the following steps:
- Review existing facility and recognition arrangements to identify gaps or inconsistencies with the incoming regime.
- Engage early with any existing unions on their plans in relation to access arrangements and consider what access you can offer or are prepared to agree to.
- Map physical and digital access logistics across all sites, including security requirements, IT infrastructure, and remote working arrangements. In particular, consider how existing digital platforms might be used to facilitate digital access, and the extent to which direct union communications with employees (including the sharing of employee contact details) may be required.
- Establish internal processes for handling access requests. Given the compressed statutory timetables, employers should identify who will be responsible for receiving and responding to requests, and who will lead any negotiation. Employers should also consider providing training to those in, or who may move into, union-facing roles.
- Review internal employee engagement strategy where there is no current union presence and consider investing in internal representative bodies, forums or resource groups to reduce the impact of any future increased union activity.
- Update new starter documentation to incorporate the new written statement of trade union rights from October 2026 and implement processes/systems to comply with the new duty once details are confirmed in the government’s consultation response.
- Brief HR and management teams so that they are equipped to respond to access requests and any associated union activity.
These are not changes that can be addressed at short notice. Employers who engage now can put themselves in a stronger position when the regime comes into force.
If you have any questions about how these changes may affect your organisation or would like to discuss your options in more detail, please contact the Employment team.
For further information, please contact:
Freddie Eastwell, Partner, Bird & Bird
freddie.eastwell@twobirds.com
