By Neil Todd, Head of Trade Union Law Group
On 6 July 2026, the government published a response to its consultation on trade unions’ right to access workplaces and issued draft legislation and a code of practice to give effect to section 59 of the Employment Rights Act 2025. This provision introduces what will be a new right for unions to access workers in their workplace and is due to take effect on 30 October 2026. The access purposes are wide in nature and allow unions a right of access to meet, support, represent, recruit or organise workers (whether or not they are members of a trade union).
14 trade unions and staff associations submitted responses to the consultation, together with three law firms including Thompsons. 609 employers and 29 business representative organisations/trade bodies also made submissions. From the government’s response, it is clear that all interested parties called for extensive changes to the draft Code of Practice published in April 2026. For example, in broad terms trade unions (and Thompsons) called for greater clarity associated with the procedure for requesting access generally and about how access would work with respect to irregular hours workers, as well as seeking safeguards to protect employee privacy when access takes place to ensure that the right is meaningful and workable. Many employers’ responses sought to expand the bases for rejecting applications for access and to qualify the right to make compliance easier for small businesses.
The updated Code of Practice has granted a number of concessions that trade unions (and Thomspons) campaigned for, which we consider makes the Code substantially more worker-friendly than the earlier iteration.
The most relevant” wins” for workers include:
- The insertion of a statement of principle that “there is a presumption towards access” reflected in the five statutory ‘access principles’ provided this does not unreasonably interfere with the employer’s business making clear that compliance with the Code is not limited to an employer complying with prescribed procedural obligations but also to facilitate access. It will be difficult for these requests to be blocked altogether by employers intent on keeping unions out.
- Clarification that even in workplaces that have high security facilities, employers should make every possible effort to facilitate access – the original draft Code had suggested access may not be possible in such environments, to which Thompsons and other unions strongly objected, arguing instead that access should be granted but with appropriate protections in place.
- Clearer guidance on the terms and frequency of access, stating explicitly that it is not necessary for access to take place at the same time every week, and arrangements can take into account shift patterns and other factors to ensure workers with atypical work patterns have an equal right to communicate with a union.
- The removal of language stating that, in the case of physical access, it is expected that managers and supervisors would ordinarily be allowed to attend union meetings.
- Provision for liability of third parties (e.g., site managers and landlords) where these frustrate access arrangements.
Importantly, the government has declined to impose distinct obligations on employers of different sizes, albeit the regime only applies to workplaces with at least 21 workers. The Code instead notes that each case will be considered in the light of the circumstances of the workplace. We consider this is the most appropriate approach that will ensure all in-scope workers have an equivalent right regardless of the size of their employer. The Central Arbitration Committee will take into account the resources and size of a workplace when determining how access takes place.
The Code also adds welcome clarity by confirming that workers should be paid for attending union meetings and by adding guidance as to the CAC’s enforcement mechanism to ensure unions will not be unduly penalised for minor breaches of the Code. Many unions had understandably expressed significant concern about the penalty provisions in the original Draft Code, as these appeared to suggest that the CAC could theoretically issue fines of up to £500,000 against unions as well as employers for a repeated breach of any provision of the Code (even if wholly minor in nature). Despite lobbying by employer groups, the £500,000 maximum fine has been maintained, but the Code now explicitly provides that breaches that seek to frustrate access agreements would be considered “very serious”, as compared to more minor, procedural breaches.
Overall, we consider the updated Code is an improvement on the earlier iteration, and the new access framework offers a significant opportunity for unions to reach new workers.
