One of the biggest changes (and yet one of the least talked about) set to come into force under The Employment Rights Act 2025 (ERA 2025) is Trade Unions’ right of access to workplaces.
With effect from October this year, Trade Unions (TUs) will gain a right to enter into an ‘access agreement’ with employers which will allow them onto business premises for the purposes of organising and recruiting members, facilitating collective bargaining or providing employees with support and representation.
TUs will have a statutory right to demand access to any workplace that has 21 or more employees. This access can be physical or digital.
Further, there is no requirement for the TU to have any existing members at the organisation.
How does a Trade Union gain access?
Step one: The TU will need fill in a form setting out the nature of the access agreement that it wants to reach with the employer. The employer has 15 working days to respond to the request for access.
Step two: If the employer does not agree to the request in full, they can engage in negotiation. An employer has 25 working days to negotiate terms of access with the TU.
Step three: If following negotiation there is no agreed terms of access, the TU can submit a claim to the Central Arbitration Committee (CAC) which will then determine what access should be granted and on what terms. This application should be made by the TU within 55 working days of the initial access request being made.
A word of warning here…The CAC can and almost always will impose access rights for the TU.
As such, the default position as to the terms of access is that TUs will be granted weekly physical access, provided that they give 2 working days’ notice before each physical visit.
Digital access is considered in addition to, not an alternative to, physical access. Therefore, employers cannot refuse entry to their workplace because they have engaged in digital access. Digital access is likely to be via an email to the Employer which will be distributed to employees and online meetings.
What are the risks for Employers?
This new right to access comes with substantial penalties for non-compliance.
Employers may be liable for fines, payable to the Government, of:
- Up to £75,000 for first refusal or breach of agreed/imposed access terms;
- Up to £150,000 for a second breach; and
- Up to £500,000 for subsequent breaches
What should Employers do to prepare?
This right of access is set to come into force in October 2026.
Further details of the how the exact process will work in practice will be introduced by the Government in later regulations, prior to October.
In the meantime, employers should be implementing processes to ensure that when the inevitable requests are made, they are equipped to respond within the set deadlines by looking to implement the following steps:
Assign designated staff. Who in the organisation will deal with access requests? It is recommended to assign designated staff, to ensure the request can be dealt with in a timely manner.
Audit workplace premises. Physical access could include facilitating TU meetings with all employees. Employers will be required to take reasonable steps to facilitate access, however, they will not be expected to make significant structural changes to facilitate access.
Decide on an access offer. Employers should decide their preferred terms of access for both physical and digital access. This will ensure clear negotiation with TUs can take place within the designated 25 working days.
Create template responses. Employers should begin to create recourses to aid their prompt response to access requests.
Compile evidence. Employers should build an evidence pack to assist in any negotiations on terms. It is vital Employers can provide evidence for any restrictions they wish to impose.
Conclusion
This change will have a significant impact on Employers.
With effect from October, employers will have little prospect of refusing a valid access request for any qualifying TU.
However, Employers should ensure they are in the best position to negotiate favourable access terms.
If you are an employer affected by the above issue, our employment team can provide advice or support in connection with the same, please do not hesitate to contact us on 01206 239761 or [email protected]
