By Jo Seery Professional Support Lawyer &
Rachel Halliday Member, Principal Lawyer
Introduction
In its ‘New Deal’, Labour promised to introduce a new right for trade unions to ‘access workplaces in a regulated and responsible manner, for recruitment and organising purposes’ subject to the union giving appropriate notice and complying with the employer’s reasonable requests.
The Employment Rights Bill sets out a broad framework for the operation of access rights.
On 23 October 2025, the government published a consultation on the ‘Right of Trade Unions to Access Workplaces’. This consultation will be open until 18 December 2025, following which there will be secondary legislation.
The government intends the new right to come into effect on 1 October 2026. It will consult on a new statutory Code of Practice, which will set out more detail in terms of practical guidance for unions and employers, in the spring of 2026.
Access rights set out in the Bill
A union official will be able to give an employer a request for access. The access requested can be either physical entry into a workplace or communication with workers. The purposes for which access will be allowed will be either to meet, support, represent, recruit or organise workers or to facilitate collect bargaining. Organising industrial action is excluded.
The employer may then agree or disagree the request. If the employer and the union agree the terms of an access agreement, then they must jointly notify the CAC.
If the employer does not respond or if the employer and the union do not reach agreement on the terms of access, within a set negotiation period, then the union can make an application to the CAC, which will have the power to specify the terms on which access will be allowed. If the employer responds to the union’s request, but no agreement is reached, the employer also has a right to apply to the CAC.
In making determinations, the CAC must have regard to the access principles. In broad terms, the access principles say that union officials should be allowed access in any manner that does not unreasonably interfere with the employer’s business, employers should take reasonable steps to facilitate access, and access should only be refused if it is reasonable in all the circumstances to do so.
Access agreements can be enforced by means of an application to the CAC, by either the employer or the union. The deadline for an application is 3 months. If the CAC upholds an application, it can order an employer to take steps to ensure that access takes place in accordance with the access agreement. If the employer breaches the agreement again, within 12 months of the CAC decision, the union can make a further application to the CAC and the CAC can then impose a fine. If the CAC determines that a union has breached an access agreement and the CAC subsequently upholds a further application by the employer, about conduct by the union which took place within 12 months of the CAC decision, then the CAC has the power to fine the union.
Access agreements are conclusively presumed not to be legally enforceable contracts.
Current consultation
The current consultation sets out more detail on the way in which the government proposes access rights will operate in practice. The proposals include: details of the information to be included in access requests and responses; a timetable allowing 5 working days for the employer to respond to a request, a negotiation period of 15 days and a deadline of 25 days (from the date of the union’s request) for either party to complain to the CAC; possible exemption for employers with fewer than 21 workers; access agreements to expire automatically after 2 years; discretion for the CAC to refuse access where another union is already recognised; access to take place on a weekly basis; unions to give at least 2 days’ notice of access and power for the CAC to impose a maximum fine of £75,000 with the possibility of £150,000 for repeated breaches.
Comment
The current absence of any independent right of access to workplaces undermines the ability of trade unions to organise workers. In workplaces where membership is limited, the lack of opportunity to organise workers undermines a union’s capacity to obtain recognition and, therefore, to reach a position where it can collectively bargain with employers.
The new access process will not be easy to navigate, there are 14 new clauses in the Bill itself with more detail to be prescribed by regulations and practical guidance to be set out in a new Code of Practice. In order to reach a position where an anti-union employer, who repeatedly refuses union access, is actually sanctioned for its conduct, a union will need to make three successful applications to the CAC.
There are some proposals in the current consultation which are potentially concerning for unions, in particular the very short time limit for an application to the CAC and the proposal for access agreements to expire after 2 years.
While we will need to wait until spring 2026 for more practical guidance. It is possible that some of the provisions of the Code of Practice on Access and Unfair practices during recognition and derecognition ballots, such as workers being paid in full for attending meetings with union representatives in work time, could find their way into the new Code of Practice; other provisions are likely to need updating to reflect new ways of working and technological changes since the Code was first published in 2005.
While there remains work to be done on the details, there is no question that the introduction of access rights is an important legal development for trade unions and for workers. There is good reason to hope that the change will lead to meaningful improvement in the ability of trade unions to organise and support workers in a much wider range of workplaces.
