The everchanging landscape of employment rights law has evolved further as yet another change under the Employment Rights Act 2025 (ERA) is due to come into force from October 2026. This change relates to the statutory right for trade unions to enter workplaces and is part of the Government’s plan to ‘Make Work Pay’.
Section 59 of the ERA will enable independent trade unions and employers to enter into access agreements allowing union officials to access the employer’s workers, whether digitally or physically for the following purposes:
- Meeting
- Representing
- Recruiting
- Organising
- Facilitating collective bargaining
The union will present an access request to the employer who may issue a response notice before the end of the response period. If the employer responds, the parties must then engage in a negotiation period where they will agree written terms on which the trade union officials will have access.
If the employer fails to engage with the initial access request or the negotiation period, an application may be made to the Central Arbitration Committee (CAC) to determine the terms of a union’s access and any alleged breaches of access agreements.
A consultation was published named ‘Make Work Pay: Right of trade unions to access workplaces’ on 23 October 2025. It sought views on the practical and operational details of how the right of access for unions will work. The consultation closed on 18 December 2025.
On 8 April 2026, the government published:
- their response to the initial consultation; and
- their Draft Code of Practice consultation.
The Draft Code incorporates views from the initial consultation and includes accompanying regulations detailing the practicalities of the right of access.
It is intended that the final Code will run alongside primary and secondary legislation to ensure the statutory framework is consistent.
The Draft Code sets out the key proposals listed below.
Form of access requests
Secondary legislation will provide that all access requests and responses must be made in writing.
The Draft Code will suggest that where two or more trade unions make a joint application for access to a workplace, the unions should work together to implement common access arrangements. It considers that the amount of time needed for access would remain the same for all applications.
Consultation comment:
The consultation considers whether this provides sufficient clarity on how a joint application would operate in practice. It does not detail how this would operate where a breakdown in relationship had occurred.
Information to be included in an access request
Secondary legislation will provide a general idea of information requirements and will include:
- the purpose of the access request
- a general description of the workers the union is seeking to access
- the type of access being requested
- the notice period for the initial access visit
- the frequency of access and the rationale for this
- workplace locations to be used for access
- a statement that the union is making a request under section 70ZB of TULRCA 1992
- contact information for the trade union and their certificate of independence
The Draft Code provides a standard template detailing how to deal with a request.
Information to be included in an employer’s response
Here, secondary legislation will also provide general requirements including:
- whether the access request is accepted or declined
- a statement that this is a response under section 70ZB of TULRCA 1992
Where the request is accepted, they should include:
- the name and contact details of the appropriate person dealing with access
- a list of the workers that fall into the description of the workers the trade union has sought access to
- the addresses of their workplaces
- the appropriate details of when workers are present at the workplace
- any facilities available to facilitate access
Where the request is rejected, they should include:
- which elements of the request have been rejected
- the reasons for rejection
- confirmation of whether the employer is dealing with an access request from another trade union
- an email address or alternative contact details for the employer
Where an employer and a trade union have previously negotiated an access agreement for the same workplace and the trade union makes a further access request on the same terms, the employer will only be required to confirm that:
- the notice is a response under section 70ZB of TULRCA 1992
- the request for access on the terms submitted by the trade union is accepted and
- any new information that was not available at the time of the original response which would have been relevant to the original request
The Draft Code also provides a template to detail the above.
Consultation comment:
The consultation seeks to clarify whether sufficient detail has been provided on both the submission and the response of an access request. It also queries whether the standard templates provided are clear and easy to use.
Time limits
The Government is extending the following time periods:
- the employer response period to 15 working days
- the negotiation period to 25 working days
- the CAC referral period to 55 working days
These extensions are designed to balance the need for timely access with practical considerations for both employers and unions.
CAC determinations
The CAC will make decisions on whether access should take place. Employers with fewer than 21 workers will be exempted from the right of access framework. However, the government intends to make a targeted adjustment to the framework from 2027 so that the exemption will not apply in workplaces covered by a statutorily supported national bargaining framework. This is designed to ensure voices across the full workforce can be heard.
The Draft Code also states that access must not be granted where doing so would be contrary to the interests of national security or would prejudice the prevention of offences.
Additionally, there are some circumstances where it is reasonable for access not to be granted including:
- presence of a recognised union
- ongoing statutory recognition process or existing access agreement
- multiple access requests.
The Code also proposes refusing access where an application would require excessive resource allocation.
Consultation comment:
The consultation considers whether clear and sufficient guidance has been provided. It also queries whether it is appropriately detailed as to which circumstances access must not be granted in.
Breach of access agreements and fines
The Draft Code provides that action can be taken where the access agreement has been breached and that this includes attempting to resolve differences, complaining to the CAC or the CAC issuing penalties.
Penalties can be issued with a maximum limit of:
- up to £75,000.00 for a first penalty
- up to £150,000 for a second penalty
- up to £500,000.00 for a third breach and subsequent non-compliance under the agreement.
The CAC must consider a variety of matters before issuing fines including the breach’s gravity, duration, reasoning and the number of workers affected. Fines must also be proportionate to the resources of the liable party and account for any relevant history of non-compliance.
Consultation comment:
The consultation asks whether there is clarity regarding the factors to be considered when treating breaches, particularly repeated breaches.
Conclusion
Overall, the consultation signals a shift for both workers and businesses to a more transparent and conciliatory approach to trade union access. The consultation will close on 20 May 2026. Those wishing to take part can do so online or by email. Further details can be found on the Government website.
