By Connor Ford, Trainee Solicitor
Existing statutory rights to time off have often been of limited practical value where representatives lacked access to meeting rooms, communication systems, noticeboards or digital platforms. The Employment Rights Act 2025 (“ERA 2025”) seeks to address that by placing facilities rights on a statutory footing.
Sections 64 and 65 of the ERA 2025, set to come into force on 30 October 2026, introduce new and strengthened rights for trade union representatives in the workplace.
Section 64 will require employers to provide reasonable workplace accommodation and facilities, where requested, to union officials and learning representatives who are entitled to statutory time off. While Section 65 creates the statutory role of the “union equality representative” and a legal framework that would also grant them rights to paid time off, training and reasonable facilities.
Section 64
Giving practical effect to statutory time off rights
The Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”) already gives eligible trade union officials the right to reasonable paid time off to carry out certain union duties and undertake relevant training. Union learning representatives also have statutory time off rights for specified activities.
Previously, workplace facilities were commonly addressed through collective agreements, custom and practice, or voluntary employer arrangements. Section 64 elevates access to reasonable facilities into a statutory entitlement connected to existing time off rights.
Section 64 of the ERA 2025 amends sections 168 and 168A of TULRCA to provide that, where an employer permits a union official or learning representative statutory time off, it must, at the employee's request, provide such accommodation and other facilities as are reasonable in the circumstances for the purposes of carrying out the duties or undertaking the training in respect of which the time off has been granted, having regard to the relevant ACAS Code of Practice.
The ERA 2025 does not specify what is meant by “accommodation and other facilities”, instead pointing towards the ACAS Code of Practice for guidance. A draft Code of Practice (“Draft Code”) was published in July 2026. The Draft Code acknowledges that what is reasonable for an employer to provide would be dependent on the circumstances, and sets out a non-exhaustive list of factors that may be relevant, such as the:
- size and available resources of the organisation;
- operational requirements and organisational structure;
- details of any agreement between the employer and union;
- nature and scale of the work the representative is undertaking; and
- needs of individuals, including disabled representatives who need reasonable adjustments.
The Draft Code also sets out what accommodation and other facilities may be provided to the relevant employee, where practical. These examples in the Draft Code include a secure access to workplace communications and digital tools, a private place to use them, physical or online noticeboards, confidential meeting space, dedicated office space where workload justifies it, access to members at other locations, and equipment for online meetings or training. The examples guide, rather than prescribe the answer in every workplace. The Draft Code recognises that what is reasonable in a large national employer may differ significantly from what is reasonable in a small workplace.
Enforcement and burden of proof
The newly amended sections 168 and 168A also introduce new enforceability mechanisms, as well as strengthening what had previously existed in relation to complaints regarding failure to permit an employee to take time off.
Following the implementation of section 64 ERA 2025, a trade union official or learning representative would be able to present a complaint to the Employment Tribunal for the employer’s failure to permit required time off or provide required facilities.
One of the most significant changes concerns the enforcement of rights to time off for officials and learning representatives (as well as union equality representatives, discussed below), Employers rather than trade union representatives will bear the burden of showing that the proposed amount of time to be taken off was unreasonable. This reversal of the burden of proof, in relation to Employment Tribunal complaints related to a refusal to grant time off, will strengthen the position of the official/learning representative and should help deter blanket refusals to requests for time off.
These changes represent a significant strengthening of statutory trade union rights. Access to the practical resources needed to represent workers will no longer depend solely upon collective bargaining outcomes or employer discretion. By coupling time off rights with facilities rights and stronger enforcement mechanisms, the legislation should enable representatives to carry out their functions more effectively.
Section 65
Statutory recognition of trade union equality representatives
Section 65 ERA 2025 creates a new section 168B in TULRCA, and a new statutory role of the “union equality representative”. The creation of a statutory equality representative reflects the increasing importance of workplace equality issues and recognises the role already performed by equality representatives in many unions on a voluntary basis.
Much like section 168 and 168A of TULRCA, the new section 168B will grant the relevant person the right to time off and, when requested, reasonable access to accommodation and other facilities for purposes related to their role as a union equalities representative. These purposes are:
- promoting the value of equality in the workplace;
- arranging learning or training about workplace equality;
- providing equality-related information, advice or support to qualifying union members;
- consulting the employer on workplace equality;
- obtaining and analysing workplace equality information; and
- preparing for any of those activities.
To be classified as a union equalities representative, the employee must be a member of an independent trade union recognised by the employer and an equality representative appointed or elected in accordance with the union’s rules. The union must notify the employer in writing that the employee is an equality representative. The rights conferred by this section apply only where the statutory training condition is met, that being:
- the representative has undergone sufficient training in relation to the previously mentioned ‘purposes’ and the union has notified the employer in writing of that fact;
- within the previous six months, the union notified the employer that the representative will undergo such training; or
- within six months of that prospective notice, the training has been completed and the union has notified the employer of completion.
Enforcement and protection from dismissal
The enforceability of section 168B mirrors that of sections 168 and 168A, in that the union equality representative may bring a complaint to the Employment Tribunal if their employer fails to permit required time off or provide required facilities. In addition, as with sections 168 and 168A, where a complaint is brought in relation to refusal to grant time off, it will be for the employer to show that the amount of time off which the employee proposed to take was not a reasonable amount of time off.
It should also be noted that a dismissal for asserting the statutory right established by section 168B now falls within the automatic unfair dismissal framework.
Remedies
The remedial regime, under section 172 TULRCA, governing a successful complaint for failure to permit a relevant employee to take time off, has now been broadened to include complaints relating to failure to provide, when requested, accommodation and other facilities (section 168A) and failure to grant time off/accommodation and other facilities related to that time off for equalities representatives (section 168B).
This means that, when a complaint is well-founded, the Employment Tribunal must make a declaration to that effect. It may also grant an award of compensation to the employee. The amount that the tribunal awards in compensation will be determined by what the tribunal considers to be “just and equitable in all the circumstances”, as well as loss attributable to the issues of the complaint.
Conclusion
Sections 64 and 65 of the ERA 2025 represent a significant development in the governing of workplace trade union representation. By linking the existing rights to time off with corresponding rights to workplace accommodation and facilities, the ERA 2025 recognises that effective representation requires more than just time away from normal work duties, but also access to the resources necessary to communicate with their members, organise in the workplace and engage with employers in more productive way.
The new statutory framework is likely to be of significant importance to trade unions, who have previously had to rely on employer discretion and collective bargaining arrangements in order to access such resources. The legislation should give unions representatives a stronger footing when seeking to perform their duties effectively, especially considering the enhanced enforcement mechanisms, including the reversal of the burden of proof in time off disputes.
The introduction of statutory rights for union equality representatives also reflects the increasing importance attached to equality issues within industrial relations.
Together, sections 64 and 65 seek to ensure that workplace representatives are not only granted time off to perform representative functions, but are also equipped to carry out those functions effectively through access to accommodation, facilities and enhanced legal protections.
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