The Employment Rights Act 2025: Union Access Rights

Trade unions are about to get a new right to access to workplaces which could be one of the most significant changes under the ERA 2025. We talk through the forthcoming statutory right of access under the Employment Rights Act 2025, expected to arrive in October 2026, and why it changes the long-standing reality that employers could simply refuse access unless they chose to agree. 

We unpack what we know so far: who the right applies to (including the 21-worker threshold applied at company level), what a “workplace” can mean, and the permitted purposes for access such as meeting, supporting, representing, recruiting and facilitating collective bargaining. We also highlight what is explicitly not permitted, including using the right to organise industrial action, and why privacy expectations mean employers cannot simply sit in and listen. 

The practical detail is where HR teams and leaders will win or lose time and money. We walk through the code-led steps, from voluntary agreements and potential ACAS support, to formal access requests, the 15-working-day response deadline, the negotiation window, and when a dispute can be referred to the Central Arbitration Committee (CAC). We also explore what access might look like day to day, including notice requirements, reasonable workplace instructions, and the growing question of digital access through tools like Teams or Zoom and the limits around significant changes to premises or IT systems. 

Finally, we look at enforcement, including CAC complaints and eye-watering fines, and we share three practical tips to help you prepare: review what you already have, get your internal response team and templates ready, and keep an eye on further regulations as they land. Subscribe, share, and leave us a review, then tell us what part of union access you are planning for first.

For the latest updates and guidance, visit Browne Jacobson's Employment Rights Act 2025 hub at brownejacobson.com/employment-rights-act  

Transcript

Welcome And What’s Changing

Claire Rosney 0:06

Hello and welcome. I'm Claire Rosney, professional development lawyer here at Brown Jacobson, and I'm joined today by Lee Ashwood, a partner in our employment team. Hi Lee.

Lee Ashwood 0:17

Hi, Claire. Thanks very much for inviting me on this. I know for those people who are listening, they might be wondering why it's me joining you today. And I suppose that's my answer to that question would be well, I've been working with businesses and organizations now for about 15 years on their relationships with trade unions, some good, some bad, some indifferent. So hopefully I can provide some insight today.

Claire Rosney 0:36

Thanks for that, Lee. You've given us a sneak peek into what we're going to be talking about. And actually, this is what we think is going to be one of the bigger changes coming out of the Employment Rights Act, and that is trade unions' rights of access. So over the next uh few minutes, we will be taking you through what the new right is, how it works in practice, the consequences of getting it wrong, and more importantly, what steps organisations should be taking now to prepare. So, Lee, before we get into the detail, can you give us a quick overview of how we've

Why Access Rights Return Now

Claire Rosney 1:11

got here?

Lee Ashwood 1:12

Yeah, of course. And for the last few years, I've been saying to people as as trade unions and the Labour Party have been starting to realise they were going to get into power, that there were going to be some fundamental changes into trade union rights and access and recognition, and that's come to fruition in in the last few months. If we go back a few years and in back maybe even longer than that, say 30 or 40 years, trade unions used to get access to workers by standing at the factory gates on a Friday evening and at five o'clock when the factory whistle blew, they would collar people or grab people, persuade them to come to the pub with them, offer them beers and sandwiches and press leaflets into the hands and talk to them about the benefits of trade union membership. Of course, the world's changed massively since then, and the trade unions for a number of years have been trying to infiltrate or get recognition or get some sort of grounding with the gig economy. So the people that drive the taxis that you've hailed on an app, the people that bring the takeaway food to your door while riding a bicycle, the trade unions have really, really wanted to try to infiltrate there to try to give those people who we know in some instances are viewed as not having applicable rights to employees and boost their rise, but they haven't been able to access them because those people are all individuals and don't have a designated workplace. So that's the background to all of this. And this legislation is designed to really get around that by making it easier for trade unions to get access into the modern day workplace, which isn't anymore the factory, it's working from home, it's working in offices, it's working in um mutual workspaces that are hired on an hourly or a day-to-day basis.

Claire Rosney 2:50

Yeah, and I think that's a really important point, isn't it? That if you think about a lot of our uh labour relations law in relation to trade unions, you know, it is 40, 50 years old now, and it really isn't fit, I guess, um, for what has now evolved, as you rightly say, into the modern workplace. So I think um, you know, it's understandable. Um, and of course, the government consulted um on this at the end of last year and has published its response, and it has said it does intend to bring this new right into force. So, in terms of the detail, how much do we actually know at this stage?

Lee Ashwood 3:25

Well, we know quite a bit by comparison to say some other changes in the with the Employment Rights Act 2025.

The New Statutory Right Explained

Lee Ashwood 3:31

And I should point out, I'm gonna call it the Employment Rights Act, or I might call it the ERA or the ERA 2025, but we're talking about the same thing. We're talking about the piece of legislation that's that's in play now. The key point with all of this is it's introducing a new statutory right to give trade unions the right to access workplaces to engage with workers. And the new right is expected to come into force in October 2026. Not everything is finalised, and so we have a bit of time and we'll be keeping an eye on what's going on, but we do know quite a bit about what the law is actually going to say.

Claire Rosney 4:08

Yeah, and I think you know, the headline point really to make here is that currently trade unions don't have a general freestanding right to access workplaces, which is why, like you said, you know, in years gone by they might have stood at the gates and, you know, handed the leaflets. So access historically has been subject to either voluntary agreements with the employer or down to the presence of individual trade unions within a workplace. Now, the Employment Rights Act changes that by introducing this statutory right for independent trade unions. So that's those with a certificate of independence to access workplaces. And I think it's important to remember this, both physically and digitally, which we'll we'll get on to. Um, but it is for divine purposes. So the purposes that um they can access are meeting, supporting, representing, recruiting or organising workers and facilitating facilitating collective bargaining. That's not easy to say.

Lee Ashwood 5:08

And and I think that's an important point and probably something you'll you'll talk about a bit more. But the this point around the permitted purposes. So why are the trade unions allowed to access the workplace?

Claire Rosney 5:19

Yeah, and and and absolutely um they are defined. So organizing industrial action is explicitly excluded from the permitted purposes. So unions can't use this as a route to drum up support, for example, for a strike. It's all about increasing awareness of unions, what unions can do for workers, and effectively it's to increase membership. I think that that that's fair to say.

Lee Ashwood 5:42

Yeah, I think that's very fair to say. And that's certainly my interpretation of why it's there. But what about the exclusions? And it's so you're talking in rather broad terms at the moment, and I know we'll go into more detail. But is there anyone that's excluded from this right? Is there anyone that doesn't have to be worrying about this?

Claire Rosney 5:58

Yeah, but it's pretty limited. So the right doesn't apply to employers with fewer than 21 workers, but that threshold is applied to the overreaching company. So, for example, if you've got a small site of say 10, but you're part of a larger employer with 21 or more workers, then you're going to be in scope. However, it's worth bearing in mind that unions won't be able to access private dwellings, but hybrid workplaces that are a combination of residential and working environments are in scope. So a residential care home, for example, um, and they would be subject to the considerations in the code. So, in terms then of the process, how does this work? So, if a trade union wants to access the workplace late, what happens?

Lee Ashwood 6:44

Yeah, so this is the practical elements of

Requests, Negotiation And CAC Timelines

Lee Ashwood 6:46

all of it, isn't it? And and so we have to talk about this in general terms, and employers and organizations have to think about this as to how this would look for themselves. But the starting point is we have a code, and that's quite clear. And and the funnily enough, the first thing the code says is the statutory process, this right that the law is going to bring through, the ERA 2025 is going to bring through, should actually be used as a last resort. The desire, funnily enough, from the trade unions, I'm sure more than anyone else, is that is that actually access should be a voluntary process. And so if that falls, if that falls down, then there is a process that can be followed. But we would much rather, this is what the government is saying, we would much rather you as employers give trade unions access voluntarily.

Claire Rosney 7:31

Yeah, and I think it's worth mentioning as well that ACAS can be used to try and facilitate a voluntary agreement, but clearly the preference is to always try and sort it out between yourselves first.

Lee Ashwood 7:41

Yeah, absolutely. But but where that's not possible, and again, this will be something you know we probably revisit later on about when we talk about what should businesses and organisations be thinking about, when it's not possible to reach a voluntary agreement with the union as to how and why they can they can access work premises, well then the union can submit a formal access request to the employer using a standardized form which is set out in the code. And an email should be used, ideally, where that's possible to create an audit trail of how the union has done that.

Claire Rosney 8:11

Okay, so when that request lands with the employer, what happens then? What do they need to do?

Lee Ashwood 8:17

Okay. So the employer receives an email from a trade union saying we want to access the premises and here's why. The employer's got 15 days to respond. And that response again, the code provides a template for how and what you should say in your response. If you're agreeing as the employer that the trade union can access, well, then you confirm acceptance, the union and the employer notifies the Central Arbitration Committee, the CAC, and things just progress from there in line with what's been agreed. Probably of more interest is well, if as an employer, if you reject the trade union's request to access, what happens there? Well, you've got to clearly explain which elements of the access request you're rejecting and why.

Claire Rosney 9:02

Yeah, and I think it's also worth mentioning there's some quite specific time frames set out, aren't there?

Lee Ashwood 9:07

Ah, yes, sorry, yeah, good point. Good point. So there are, and I make no apologies for this, I need to check my notes on this because this is so fresh in everyone's minds, and they're very prescriptive. So 15 working days for the employer to respond to an access request. Then 25 working days for the parties to negotiate the terms of an access agreement following the employer's response, assuming the employer's response is positive. 15 working days for either the trade union or the employer to refer the matter to the CAC if those negotiations fail. And that's also then within a 55-day overall CAC referral period. And then ultimately, then there's a two-year maximum duration of any access agreement.

Claire Rosney 9:52

So I think it's fair to say it's a fairly structured process. But what happens if the parties just can't agree?

Lee Ashwood 9:59

Yeah, and and I I think this may well be happening quite a lot. Um so if parties can't agree, the trade union can refer or the employer can refer the matter to the CAC. Now, the CAC's part in all of this at this particular juncture is it's got to balance the trade union's rights to enter the workplace with the employer's rights to operate without unreasonable interference. And I can see there being a lot of arguments, and we know how lawyers are for hanging on the words of codes and legislation. I can be there seeing a lot of arguments around what constitutes unreasonable interference.

Claire Rosney 10:37

Yeah, I think it's um given me flashbacks to do you remember the statutory dispute uh resolution procedures, and we were all arguing about, yeah.

Lee Ashwood 10:46

The beauty of a previous Labour government, isn't it? And then those who are old enough to remember it can remember those things and and and are now foreseeing the same again under this Labour government.

Claire Rosney 10:56

So I think the code, though, does give us some guidance, doesn't it, on what an access arrangement might look like in practice?

Lee Ashwood 11:03

Yeah, it does, and actually that's quite a helpful part of the code because it takes away some of this uncertainty.

What Access Looks Like Day-To-Day

Lee Ashwood 11:09

And I think some of some businesses and organizations will be sort of resistant to access because they simply don't understand what access is going to mean and they don't want to be giving away more than they would ordinarily want to to a trade union. So so the the code gives us some model terms which are quite helpful. So they suggest, for example, as a model term that weekly access is granted, although fortunately it does say that agreements can specify a lower frequency than that. So some people understandably might balk at the idea of a trade union having weekly access to their workforce to discuss gaining support, gaining membership, as you talk about. So you can agree less than that. And I think that'll be an interesting point of negotiations between employers and trade unions to see how that plays out. Also, the the the code tells us that trade unions have got to give a minimum of two days' notice before each access visit. So, as I'm understanding that at the moment, you may well agree with the trade union that they can visit fortnightly. But even with that fortnightly agreement, they would still have to give two days' notice before they visit each fortnight. And again, I can see that being a battleground. Trade unions aren't notoriously uh well um funded and often find sort of administrative processes quite difficult. So I can see them falling down on that, unless they have a representative on the ground in your workforce already to implement it. And then also then the the code helpfully says that union officials must comply with all reasonable instructions given by the employer. So, for example, they have to abide by health and safety inductions, they can only go in permitted areas, they have to provide the identification. If you're working in an environment where lanyards have to be worn, they have to wear a lanyard and so on and so forth.

Claire Rosney 12:53

Yeah, which I think, you know, that's fairly sensible and standard stuff because any visitor would presumably have to comply with those uh requirements as well. No, I think one of the things that we have mentioned is we're not just talking about physical access here, are we?

Lee Ashwood 13:07

No, no. And this is where sort of again those older, older people sort of listening in will will start to get their head around how the world has changed. It we're talking about potentially digital access as well. So thinking Teams or Zoom, that there is a lot of talk about how trade unions will actually utilize this because again, you if you can get someone on the end of a Teams call or a Zoom call, you can speak to them on an individual basis in a way that you haven't been able to before. You don't have to physically visit them to try to drum up support for your trade union. Where access is physical, though, it's got to be practicable in where it is in the actual workplace in a meeting room. You know, we we we shouldn't have to worry about trade unions going on two factory floors while machinery is working and trying to speak to people during their shift. That said, access is anticipated is going to be sort of during normal working hours, but at a time to minimise disruption, so rest periods or towards the end of a shift or a recognized lunch break or or or so on. Now, there's a temptation, isn't there, to want to know what the trade unions are saying to your employees and your workers. And I I understand that. And but there's a clear aspect of the code saying, well, employees have got to respect the privacy of those meetings. You can't attend them unless you're invited to do so. So whilst curiosity is going to be burning inside you to understand what's going on, you you're going to have to either find an employee who's going to be willing to tell you afterwards or just be content with not knowing. And and it's worth, I think, probably pointing out that the government is really serious

Breaches, Complaints And Big Fines

Lee Ashwood 14:39

about this right. Uh for and without delving into political reasons, we just need to leave it there that they're serious about this right. So there will be hefty penalties for employers if they get it wrong. And I suppose, Claire, you'll probably sort of have more of an insight on that for me at the moment.

Claire Rosney 14:54

Yeah, so again, the code does encourage employers and trade unions to first try to resolve any disputes through dialogue. So where they think there's been a breach of the code rather than going, you know, and and and making a complaint about that more formally, talk to each other, see if it can be resolved. But if that fails, either party can complain to the CAC that the other has breached the access agreement. And complaints have got to be made within three months of the alleged breach.

Lee Ashwood 15:22

Yeah, so people that know me well will say, if they've spoken to me over the years, they'll say, Well, Lee is just going to say, Well, so what they can complain. So, so what they can complain. But if there's a financial implication, I'd want to know. So, is there one?

Claire Rosney 15:36

Yeah, and it is significant. So the CAC may impose fines of, are you ready for this? Up to £75,000 for a first breach, £150,000 for a second breach under the same agreement, and up to half a million for a further breach under the same agreement.

Lee Ashwood 15:56

That's okay, that's that I I I'm laughing because I I can see in my mind trade unions writing letters. And I think if though pick some people might remember that the trade unions, after the change in holiday pay um legislation, the calculation of holiday pay, wrote a number of very standard letters to nearly every organization and business in the land threatening to sue them for holiday pay and commenting on the amounts of numbers. And I can I can just envisage similar letters coming out now from the trade unions touting those figures. The question is going to be, and I can anticipate the question I'm going to be asked by by employers, is well, how likely is it that that's going to be enforced on us? And and I'm going to be forced to say now, and probably in the next few months, we just don't know. It is really going to depend on how much appetite the CAC has for prosecuting cases like this and how much funding it has to do that. But in the meantime, it's probably worth bearing in mind that you're going to have trouble justifying to your finance director that you didn't let the trade unions in and now you're facing a fine of up to £75,000.

Claire Rosney 17:02

Yeah, absolutely. And I think as well, um it it one thing that's worth um bearing in mind is that where you are entering into an access agreement, be really, really clear about what you're agreeing and don't leave any room for doubt as to what something means, because if the unions say, well, it means this and you've not allowed us to do that, and then you get a complaint, those fines, as I say, are quite eye-watering. You can actually appeal um as well against CAC um decisions um and they go to the Employment Appeal Tribunal. But again, that's costly, that's that's time consuming. So I think the message to employers is the new right should be taken seriously because the cost of getting it wrong is considerable. So on that note, Lee, what do you think this all means, though, in practical terms for employers?

Lee Ashwood 17:52

Oh,

Practical Impact And Employer Pinch Points

Lee Ashwood 17:52

yes. I thought you might ask me that. I've been thinking about this for a while. I think the the key difference for where we are today, as opposed to where we'll find ourselves in October of later this year, is that this is a statutory right for the trade unions to access workplaces. For the entirety of my career up until now, if trade unions want to come into onto your premises to speak to your employees, they have had to have your agreement to do that. And by and large, over the years, employers have generally refused that. And they've been able to do so. And they haven't had good reasons why, they've simply been able to say no and and and push it back. The unions at best have been able to rely upon voluntary arrangements that they've had or an existing trade union member within the workforce already, almost embedded like a mole, if you like, espouting the the values of uh of being in the trade union to those around them. This change is a significant shift under the Employment Rights Act. An independent trade union can trigger a formal process, even if businesses don't have an existing relationship with that trade union, and even if there are no trade union members at all at that site. And so employers have really got to start to think about what they are going to do if a trade union asks for access. If a request comes in, as we've already talked about, Claire, there is a process that must be followed. So this isn't a time that you can be burying your head in the sand, I'm afraid. That is the biggest impact.

Claire Rosney 19:31

Yeah, and I think it is significant because at present, I think a lot of organizations are focused on the big ticket items under the Employment Rights Act. So the one that I'm hearing the most about is the unfair dismissal changes. But I actually think that the rights of access could be one of the most impactful changes for employers. And I think, you know, the trade unions are probably gearing up for it now. I think they're probably going to have a list of organizations and sectors that they'll target.

Lee Ashwood 19:58

Yeah, my experience tells me, and and from what I'm hearing on the grapevine, is that's exactly what's happening, is that trade unions are drawing up a list. The trade, the trade unions, by and large, and and will will it will go after certain areas where they know they can get traction quickly. You could call it sort of the the low-hanging fruit list. That's where they will go. I I also anticipate that they will spread themselves far and wide quickly. I mentioned the sort of the holiday pay calculation letters that we saw sort of 10 odd years ago. That I think trade unions will will send mass mailings out to all organisations and businesses to try to get access. Those that suggest they will, I think they will then take leverage on that and there will be their low-hanging fruit. Those that refuse, they may well leave behind. But if they don't leave those behind, they've got a process, as we've as we've talked about, that they can drive that through. So uh you're probably thinking, well, what do we do as an employer? What arrangements should I have in place? Um the the best position to be in is is don't be complacent with this. You're right, Claire, when we say a lot of attention is being paid to other aspects of the Employment Rights Act 2025, the unfair dismissal um changes in particular. But this is happening and it will have a fundamental effect on people's businesses. Go back, look at what access rights and trade unions have currently got. If there's none, then you need to be thinking about well, what will you do if this formal statutory process is triggered against you? And if it is, it's probably worth thinking about now. Well, who within your business or your organization is going to handle that access related request? Who's going to handle the correspondence? Who's going to discuss unreasonable interference with the with the trade union? Who's going to monitor their access? Who's going to ensure that it isn't going beyond what those permitted reasons are that you were describing earlier?

Claire Rosney 21:57

Yeah, so I think that is really the overall message, isn't it? Don't wait for a request to land on your desk before you thought about it.

Lee Ashwood 22:05

Yeah, no, you're exactly right.

Claire Rosney 22:08

And in terms of pinch points, Lee, for employers, where do you think these are going to be?

Lee Ashwood 22:13

Um well once we've got past the point that you've received uh a request for for for access, the the the obvious pinch point for me is the time frames. The 15 days in which to respond sounds reasonable, but we all know, and HR professionals in particular know, that that time can flash by. And if you're busy or you have a board that's looking at other things or other issues, 15 days will will really be gone quickly. And I keep coming back in my mind to the to the fines that you're talking about and thinking, well, is that going to be applicable if we're simply on the 16th day or the 30th day, how are the trade unions going to respond? So I think it's important to flag that up.

Claire Rosney 22:54

Yeah, and I think it's also important to flag, isn't it, that we can't just go no, but nothing more?

Lee Ashwood 23:00

Yes, and and that the the simple no was one of my best weapons in my armory for dealing with trade unions. So I'm spending the next few months thinking about how we're dealing with this as well. No, uh a simple no thanks just doesn't cut it anymore. You you've got to reject the whole request or part of the quest and explain clearly why. Um now, for HR professionals listening, you know, we talk about well, flexible working requests, and and I wonder if it's going to be analogous to that in terms of, you know, that we're going to develop stock answers for how to do that. But I don't think being vague is going to be particularly helpful in this. I think if anything, that's going to undermine your position, particularly if the trade union then makes a referral to the CAC, a a vague cursory no with some some wishy-washy reasons as to why isn't going to cut it, I don't think. It's got to, you've got to be quite specific. And again, we talk about flexible working, and I'm using that as an analogy, in that that the shift with flexible working requests has been from a simple no to over the years to now the general position is well, you start with a yes, and then you have to try and think about a no. And and that's how I'm thinking about access requests is really the automatic response is is and what the government is expecting you to have an automatic response is to be a yes. So if it's to be a no, there's got to be a good and detailed reason why.

Claire Rosney 24:19

Yeah, no, I'd agree with that. Um, and I think the digital access element could be another area where we're going to get questions.

Lee Ashwood 24:26

Yeah. And and we we could do with a bit more detail around this, I think, because we have to understand well, what do they mean by digital access? I know we I mentioned earlier about Teams or Zooms, for instance, but the trade unions for a long time have been pushing for email addresses and the like of employees and workers so that they can reach out to them through that medium. And and I can see there being some tension around all of this because actually granting physical access is one thing, but granting access uh electronically or digitally means utilising an employer's IT systems and that and and using that. And that's often sort of considered with a little bit more cynicism than say providing a meeting room at the end of a corridor. So I wonder what we'll see around that. Yeah, I think as well, the other battleground might be between what counts as an existing and what counts as a significant change, because we know that employers aren't going to be expected to make significant structural changes to either premises or IT systems. So yeah, I think that could be a battleground. I think the other interesting one for me is hybrid workplaces. So where you've got a combination of residential and working environments, they're in scope, subject to considerations listed in the code. But again, I think, you know, how's that going to work in practice? I think careful thoughts are going to, you know, need to be given around privacy and logistics of a union official having access to essentially what's part, you know, of someone's home. So before we wrap up, Lee, like all the best parties, you get a goodie bag at the end of it.

Three Tips And Final Wrap-Up

Claire Rosney 26:04

Can you give our listeners something practical to take away? What are your three top tips?

Lee Ashwood 26:10

Okay. Yeah. Think about where you are now as a business owner or an organization in terms of your trade union relationships and where you stand in respect of what you foresee your trade union relationships being like in the future. If you've currently got some sort of arrangement with a trade union, I think now is a good time to go back and revisit that. Experience tells me that collective agreements and like are often drafted very badly. And actually, if you're going to be studying the detail of what access is allowed, this is a good time to revisit that. If you don't have anything in place, start to think about well, what is this going to look like? How readily are you going to welcome a trade union into your into your workplace? You will need to speak to your board and other stakeholders and that to understand where you are going to be. Secondly, flowing from that, is you need to be ready for this process when it comes in in October. We have, as we Claire, as you and I have just discussed, we've got a fair bit of the detail. We've got a lot of certainty about what this is going to look like. And it is going to be here in October. So are you going to be ready? And being ready is, well, one, do we know what our general answer is going to be for an access request? But two, are we ready to respond to it within time? Because we've got these very tight time lines to deal with as well. Once you've got all that in play, the next thing to do is keep an eye on what's going on. Claire, you'll be updating people I know through the next few months about this. We have nearly all the detail, but not exactly all of it. So there will be further regulations and detail coming out in the next few months, which is going to help businesses and organisations shape how they deal with this. And so we'll be keeping people abreast. And I say I'm I'm leading you to you to that, Claire, to do this, that you'll be keeping people abreast of just what those changes are, I'm sure.

Claire Rosney 27:55

Yeah, um it's certainly on my radar. Brilliant. That's really clear and practical. Thank you, Lee. So that's all that we've got time for today. But thank you so much, Lee, for joining me and for breaking this down so clearly. And thank you to everybody who's listened. If you'd like to discuss any of the issues we'd covered today or find out how our employment team can support your organisation with these changes or anything else under the Employment Rights Act, then please do get in touch with us. We'd love to hear from you. And if you'd like to keep up to date with All Things Employment Rights Act, we have our Employment Rights Act hub, which you can find on our website. So thank you and see you next time.