As outlined in our recent article, the Government has laid before Parliament a revised draft Code of practice on the right of trade unions to access the workplace (the “Code”) and draft regulations, which are unlikely to alter. According to the Government’s Make Work Pay and Employment Rights Act timeline, these will take effect from 30 October 2026.

Under the Employment Rights Act, certified independent trade unions will have a new statutory right to request access to workplaces for a broad range of “access purposes” (i.e. to meet, support, represent, recruit and organise workers – whether or not they are members of a trade union – and to facilitate collective bargaining). The parties are required to try to reach agreement but, if unsuccessful, the Central Arbitration Committee (CAC) will have the power to order access arrangements.

This is a significant development which is likely to have a fundamental impact on employee relations in many workplaces. Below, we outline the key points employers need to know about what the access request procedure will look like once the new rules come into force.

Procedure for a union to request access

  1. If a union wants to request access to a workplace, it will need to give the employer a written "access request" in a prescribed format in line with the Code and regulations (there are standardised templates in the appendices to the Code). The access request could cover physical entry and/or digital access (so could, for example, include the requirement to cascade information on the union’s behalf via email or other formats, and the requirement for the employer to organise online meetings), and seek one-off or ongoing access. It could propose terms of access (including any support the union would like the employer to provide to facilitate this). Crucially, to request access, the union will not need to show any existing recognition rights, minimum levels of membership or have had a previous presence in the workplace. One access request can apply to multiple sites.
     
  2. The employer will have 15 working days to respond to a union’s access request (the “response period”). The Code includes a template form for this purpose.
     
  3. If the employer does not accept the union’s request in full, a “negotiation period” of up to 25 working days will follow, during which the parties should seek to agree written access terms. This period can be extended by agreement.
     
  4. If access terms are agreed, the parties will jointly notify the CAC and proceed with the access. If no agreement is reached, the union will have a further 15 working days (the “CAC referral period”) to make an application directly to the CAC which will have the power to order access arrangements. (In certain circumstances, the CAC may extend this by a further 15 days.)

How the CAC will decide whether to grant access

If agreement has not been reached and an application is made to the CAC, when determining whether to grant access, the CAC will consider the "access principles" which are set out in the Employment Rights Act. Those principles require the CAC to balance the union’s right to enter the workplace or communicate with workers against the employer’s right to continue operating without unreasonable interference, meaning the legal structure is generally weighted towards access being granted in some form, rather than being refused outright.

The CAC will only be able to refuse an application for access to a workplace entirely where “it is reasonable in all the circumstances to do so” (a very high threshold). In practice, this means we believe that it will be very difficult for employers to block an access request completely (although it may be able to challenge specific aspects of a union’s request). “Model terms” will be used by the CAC as a benchmark for what is generally appropriate in relation to access terms.

The Code sets out certain circumstances in which access must not be granted, including where: the employer has a total company wide headcount of fewer than 21 workers; the proposed access agreement does not provide for at least five working days’ notice ahead of the first access visit; and/or the proposed access request is for more than two years. There are also very limited exemptions relating to protection of national security, and where access would be likely to prejudice the prevention, detection or prosecution of offences, but the Code makes clear that employers should in almost all scenarios be able to facilitate physical access.

In practical terms, it seems that employers are more likely to succeed in challenging the timing, location, frequency, facilities, security arrangements, or digital access mechanism proposed by a union than in blocking access altogether.

The Code also sets out circumstances in which the CAC may reasonably refuse access, including where: the employer already recognises a union; the employer is involved in an ongoing statutory recognition process; and/or the employer has a statutory access agreement with another union in respect of one or more of the workers covered by the access request. (Unlike statutory trade union recognition requests, though, recognition of another trade union is not a mandatory reason to reject an access application which might result in intra-union disputes). Crucially, the updated draft Code still lacks clarity on situations where employers receive multiple access requests from different unions at the same time. It seems that possible that companies will have to consider each application on its own individual merits.

Risks if the employer does not grant access

The CAC will have powers to enforce access agreements once they are in place, and to issue financial penalties for non-compliance. Notably, the penalties are high, and the following penalty limits will apply:

  • Up to £75,000 for a first breach.
     
  • Up to £150,000 for a second breach.
     
  • Up to £500,000 for a third breach subsequent to non-compliance under the same access agreement. (The Government has said that it will keep this £500,000 maximum under review, and this could well be increased in the future for deliberate non-compliance.)

Where the same access agreement applies across multiple company sites, breaches at different sites may be treated as subsequent breaches for penalty purposes and may therefore move the employer into the next penalty band.

When determining the appropriate penalty, the CAC will consider a range of factors, including the seriousness and duration of the breach, reasons for the breach, number of workers affected, size and resources of the employer, and any history of non-compliance. The CAC will also have powers to vary access agreements, order steps to ensure compliance and publish information relating to issued penalties (including naming offending employers).

Other points employers should keep in mind

  • Only businesses with a total company wide headcount of fewer than 21 workers will be exempt.
     
  • The Code encourages trade unions and employers to continue to use existing voluntary access agreements or agree new access arrangements on a voluntary basis where possible using ACAS where appropriate.
     
  • Access should take place during working hours, and workers should therefore be paid in full for this time unless access is during an unpaid break period. Notably, the Code still does not make clear how much time off workers should be allowed for each access meeting.

(As a reminder, we have tracked the developments of these rules in our earlier articles here, here and here.)

Conclusion

The Government hopes that this new statutory entitlement will lead to more stable and constructive industrial relations. However, many employers (including many of our members) have significant concerns about the degree to which the changes could interfere with their business operations, and the potential issues that could arise from unions achieving a growth in membership (which could lead to statutory recognition).

Regardless of whether your organisation does or does not currently recognise a union, your business could be impacted once the new rules are in force, so it is vital to be well prepared.

How Make UK can help

We will be exploring all the key changes under the Employment Rights Act at our Employment Law Updates. To book your place, click here.

Note that these changes form just one element of the reforms under the Employment Rights Act; to read about other changes see our Employment Rights Act Knowledge Base. In particular, our Trade Unions/Industrial Action Spotlight covers: union rights of access; a new obligation on employers to provide workers with a written statement of their right to join a trade union; simplification of strike action rules; protection for strike action; simplification of the statutory recognition process; enhanced right to time off; and electronic and workplace balloting.

Our HR and legal experts have significant experience in advising members on trade union and industrial action related issues. You can also contact our ERA enquiry line.

We are offering courses for both non-unionised employers and unionised employers, covering the new right of union access and wider employee relations issues.

In addition our HR consultants can work alongside your HR and leadership teams to support you with the following:

  • Building manager and HR capability: Training and guidance to help managers and HR teams understand new rights, roles and expectations, and build confidence in negotiating and engaging with trade unions in practice (supported by Working Successfully With Trade Unions).
     
  • Preparing for increased union access: Reviewing your current arrangements, designing compliant access processes, and supporting responses to union requests.
     
  • Strengthening consultation and employee engagement: Advice on works councils, consultation structures, and addressing the issues that often sit behind union activity.
     
  • Managing recognition activity and CAC processes: Practical support with recognition requests, bargaining units, ballots, and next steps following recognition.
     
  • Collective bargaining and negotiations: Hands-on help with pay negotiations, collective discussions, and manager coaching during high-pressure conversations.
     
  • Identifying and managing industrial action risk: Early risk assessment, support with lawful responses, and clear communication planning.

Please click here for information on how we can help your business.