Under the Employment Rights Act 2025, independent Trade Unions (i.e. those with a certificate of independence) will have a right to access workplaces (physically and digitally) from October 2026. A request can be made by one union or requests can be made jointly with other unions.
A new draft statutory code of practice – ‘Code of practice: Right of trade unions to access workplaces’ – has been published providing practical guidance to help support the operation of the new legal framework (the “Draft Code”). The Government is seeking views on this Draft Code via consultation which closes on 20 May 2026.
This is a significant change, there currently being no general right of access, and employers will need to prepare which will include assessing their current employee relations processes and training managers on the new right and its requirements.
The Right
The new right will give independent trade unions a statutory right to access workplaces physically and to communicate with workers (directly or indirectly), for example by email or video calls. It can be used to meet, support, represent, recruit or organise workers (whether or not they are members of a trade union) and to facilitate collective bargaining but cannot be used for organising industrial action.
The Process
The following process is currently being proposed:
- The union should reach out on a voluntary basis initially
- The union makes a request in the prescribed form (the Draft Code contains a template). This can be for access on one occasion/multiple occasions and across multiple sites. The Draft Code says that this should be sent to the person/department with authority to grant access and that email should be used where possible to enable a clear audit trail (with efforts made to ensure this is kept secure e.g with encryption etc).
- The employer has 15 working days to respond (although the parties can agree to an extension). Again, a template has been provided for this in the Draft Code. The employer can agree or reject the terms. If rejecting it needs to provide clear reasons so that the union can understand the issues.
- The parties then have 25 working days to negotiate the written terms (which the parties can agree to extend).
- If terms cannot be agreed (or the employer does not respond), parties can apply to the CAC for a determination within 15 working days of conclusion of the negotiation period (the CAC can extend this by a further 15 working days if it was not reasonably practicable for an application to have been made within the initial timeframe). The CAC will either impose access terms or allow more time for negotiation.
- Once terms are in place, the Draft Code states that access agreements cannot last for longer than two years.
Under the Draft Code , parties are expected to provide as much information as possible at each stage to facilitate successful negotiations and should maintain records of access requests and responses that can be used to demonstrate compliance.
Will the CAC always grant access?
The default position is to grant access but the CAC will need to decide if there are any circumstances making this unreasonable.
The Draft Code suggests this may be the case in the following situations (though the CAC is not compelled to refuse):
- Where an independent trade union is already recognised by the employer in relation to one or more of the workers the union is seeking to access.
- Where there is an ongoing statutory recognition process relating to one or more of the workers that the union is seeking to access.
- Where there is a statutory access agreement in place already with an independent trade union in respect of one or more of the relevant workers.
- Where there is an access request currently with the CAC (awaiting a decision) and another union makes a second request which relates to one or more of the relevant workers, it may be reasonable for the CAC to refuse both requests.
- Where the CAC considers that access may jeopardise the health and safety of any person covered by that access agreement
The CAC will also need to have regard to additional requirements for some employers, like safeguarding requirements, with unions having to comply with reasonable instructions including the possibility of DBS checks. If the employer does not own its premises or where access would be made via communal areas owned by others, there may be other considerations, like the steps the employer has taken to enable access with these third parties.
What terms are the CAC likely to impose?
The CAC is producing model terms and where the union’s request is consistent with these it is more likely to be granted.
The Draft Code indicates the following are likely to form part of the model terms and/or the CAC’s considerations:
- Weekly access (this could be on varying dates/times and does not need to be the same time/date each week). It may also be possible to average this out e.g. access up to four times a month.
- Employer should make accommodation and facilities available as is reasonable
- Employer expected to take reasonable steps to facilitate access (like creating online calls and setting up a room with chairs etc) but will not be expected to make significant structural changes to premises/IT.
- Employer should ensure that direct communications between the union and workers are private. The starting point is that the employer would share information or facilitate an online meeting. Unions can only contact workers directly with express consent.
- Access meetings should also be private and, in particular, supervisors or managers should only attend with the unions’ permission – it may be separate meetings are required. Consideration will also need to be given to the use of technology like CCTV and whether this can be limited (or restrictions can be placed on viewing this for these meetings).
- Unions must provide at least 5 working days’ notice of first access and, thereafter, at least 2 working days’ notice.
- Unions must comply with all reasonable instructions of the employer including completing any relevant health and safety inductions, providing ID and signing in/out.
- Employers should, where practicable, grant access to the actual workplace (such as a meeting room) rather than a location elsewhere.
- The employer’s typical methods of communicating with the workforce should be used as a benchmark for determining how the union should communicate.
- Access should take place during normal working hours at times that minimise disruption to the activities of the employer.
- Employer should be open to unions’ suggestions on securing access to ‘non-typical’ workers (e.g. those on differing shift patterns/hybrid working arrangements). This is more likely to be achieved via digital access.
Under the Employment Rights Act 2025, independent Trade Unions (i.e. those with a certificate of independence) will have a right to access workplaces (physically and digitally) from October 2026.
Are any employers exempt?
The rules will only apply to employers with more than 21 employees. This is assessed across the group and so a workplace of less than 21 workers that is part of a wider group that employs more than 21 workers would be in scope. In reality it is therefore likely to impact most employers.
Unions cannot access private dwellings and so fully hybrid working may be exempt from the right of access in the physical sense, though employers would still have obligations with regard to digital access.
There may also be circumstances where, for reasons of national security, access cannot be granted, though employers in these circumstances are encouraged to make every possible effort to provide facilities for access that do not compromise national security.
Enforcement and penalties
Parties can make a complaint to the CAC if they are unable to resolve disputes. This has to be made within 3 months of the matter complained of.
Following a complaint, the CAC can alter the access agreement or issue an order requiring certain steps be taken. If the conduct occurs again within a 12 month period (or there has been a breach of a CAC order) a further complaint can be made to the CAC within 3 months of the act complained of and the CAC will be able to impose a fine (this is paid to Government via the CAC). Information on fines could be made public.
The CAC can impose a maximum fine of £75,000 for its first penalty order, £150,000 for the second and £500,000 for further breaches. The larger penalty can be issued for further breaches, so repeated breaches could be extremely costly.
If the access agreement covers multiple workplaces, the breaches will be viewed as a whole, so the third penalty could be awarded in respect of a site, even where the previous breaches were caused by a different site. Employers will need to ensure they have a way of therefore recording action across sites.
The CAC will consider the following factors when considering the amount of fine:
- Gravity of the breach
- Duration of the breach
- Reason for the breach
- Number of workers affected
- Size and administrative resources of the liable party
- Previous failures to comply with previous/active access arrangements
Decisions can be appealed to the Employment Appeal Tribunal who could quash the order, reduce the fine or dismiss the appeal.
What should employers do now in preparation?
Given the default position is for access to be granted, employers should think now about how such arrangements would work for them in practice so they are ready to address requests received within the required timeframes. In line with the above, employers may want to look at:
- Physical Location: Are there issues allowing access to the workplace or any measures that would need complying with to allow them access (e.g security requirements, third parties who need consulting)?
- Timing: What times are likely to be best to avoid disruption for the business and what are your current arrangements for meetings/communication with the workforce?
- Privacy: How can you ensure privacy? Is there CCTV you need to consider? Are there groups that should not attend to allow others to be able to communicate freely and should they have separate meetings?
- Digital Access: How will arrangements be made for this? What is your current process? If the unions would like direct contact with workers how can consent be obtained (e.g. give workers the union’s details so they can contact them if they consent or ask the individuals directly if they want you to pass on their details, bearing in mind individuals may feel uncomfortable saying yes if asked by management)?
- Non-Typical Workers: Do you have non-typical working arrangements at your sites? How could access work in these cases?
- Training: Managers will need to be trained on the new right, including on ensuring privacy is respected.
- CAC Contact: The Draft Code suggests nominating a person to act as your lead contact with the CAC so this should be given consideration.
- Record Keeping: How will records be kept of requests and responses?
- Employee Relations: Consider your current arrangements for employee relations and engagement and how existing forums, where applicable, are working.
Conclusion
This new right is a significant change giving trade unions a greater right of access in the workplace. Practically, the extent it is used will depend on the resources of trade unions and, as such, it is likely that there will be a focus on particular sectors or larger employers of interest, at least initially.
The right is also, perhaps unsurprisingly, likely to be used as a tool in acquiring support for trade union recognition and employers receiving access requests should be alert to the fact that a statutory request for recognition may follow.
The is just one of the changes coming from the ERA 2025, discover how we can support you more generally:
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