Prepare for trade union rights to workplace access, employers advised

Neil Black and Anthony Convery of Pinsent Masons, who specialise in trade union law, were commenting after the UK government opened a consultation on a draft new statutory code of practice on trade unions’ right of access into workplaces (30-page / 649KB PDF). Publication of the draft code follows on from an earlier consultation the government held on union access rights, to which it has now published its response (51-page / 882KB PDF).

• Read more: implementing the Employment Rights Act

A statutory right of access for trade unions to workplaces is provided for under the Employment Rights Act (ERA) in what represents a significant expansion of union rights. The code, the creation of which is provided for under the Act, will provide the practical framework within which these access rights will operate. However, Black and Convery said the government’s proposals leave considerable discretion in areas that will create uncertainty for employers and advised employers to take steps to prepare for the changes taking effect.

Black said employers should first familiarise themselves with the scope of the new rights.

“The access right applies not only to recognised unions but also to unions seeking recognition, meaning employers could face access requests even at an early stage of an organising campaign – before any formal recognition claim is lodged,” Black said.

“The ERA and draft code do not limit access to unionised workforces or sectors with a history of collective bargaining, creating exposure for employers in industries where unions have historically had little or no presence,” he said.

“Employers in multi-site operations should be aware that access rights may need to be considered on a site-by-site basis, potentially creating logistical and resource burdens across large or dispersed workforces,” Black added.

Union access rights cover both access to physical premises and via digital means, but they are subject to permitted purposes. Convery said the code could be clearer about what activities fall within those purposes.

“Access may be sought for a broad range of purposes including recruitment, collective bargaining, organising activities, and providing services to members,” Convery said. “The breadth of permitted purposes may be a concern for employers seeking to manage the scope of union activity on their premises.”

“The code does not sharply define the boundaries between, for instance, ‘organising’ and ‘recruiting’ activities, which may lead to disputes about whether a particular access request falls within permitted grounds,” he said.

“Employers should note that access is not confined to speaking with existing union members; unions may seek access specifically to recruit non-members, meaning employers could see union activity directed at the workforce more broadly,” Convery added.

The draft code provides for a process by which unions must submit a written access request, and employers and unions are expected to reach a voluntary access agreement. Where agreement cannot be reached, the matter cam be referred to the Central Arbitration Committee (CAC).

Black said: “The CAC's power to impose access arrangements where parties fail to agree is a significant enforcement mechanism that employers should take seriously; the risk of having terms imposed by a third party is a strong incentive to engage constructively but also creates leverage for unions in negotiations.”

“Timeframes for responding to access requests may create pressure on employers who are still formulating their internal position or taking legal advice. Employers should establish a clear internal protocol for receiving and responding to access requests before the legislation comes into force, to avoid being caught without a process when the first request arrives. Training for managers handling these access requests will also be key,” he said.

Employers do have the ability to refuse or seek to limit access on certain grounds, including health and safety, operational disruption, and security. Convery said, however, that in this regard the draft code “sets a relatively high bar”.

“Refusals must be objectively justified,” Convery said. “A blanket refusal policy will almost certainly be insufficient; employers need to be prepared to assess each request on its particular facts, which requires time and resource. Ordinary commercial inconvenience is unlikely to justify a refusal.”

Refusals that are not adequately justified carry the risk of adverse findings by the CAC. Convery said this could lead to imposed access terms less favourable than those an employer might have agreed voluntarily.

Black said there are practical and operational things for employers to consider too in relation to accommodating union access to the workplace. These include relatively basic things like which meeting rooms, communication channels and other facilities they might be expected to make available to union officials, as well as more complicated issues around data protection and wider regulatory or contractual compliance.

“The interaction between the access right and the employer's data protection obligations is unresolved: union officials will be seeking to speak with employees, but employers cannot compel employees to engage, nor should employers provide personal data about employees without a lawful basis,” Convery said.

“Employers operating in sensitive environments such as financial services, defence, healthcare, or those handling confidential client information will face particular challenges reconciling access rights with their existing regulatory and contractual obligations,” he said.

Further complexities arise for employers with hybrid or remote workforces, according to Convery.

“What constitutes ‘the workplace’ for access purposes remains unclear; it is uncertain whether unions can demand virtual access to online meetings, intranets, or internal communication platforms,” he said.

Employers with existing voluntary recognition agreements should review those agreements now to assess whether they may need to be updated to address the new statutory access framework, and to avoid unintended conflicts, according to Black and Convery.

“Where a union already has recognition, the access provisions interact with existing collective bargaining arrangements, and care is needed to ensure that access visits do not disrupt negotiation timetables or existing agreed procedures,” Black said.

Convery added: “Employers that have previously resisted recognition may find that the access right effectively enables organising campaigns on their premises before any formal recognition process is triggered, making early engagement important.”

Black said the new access rights provisions should be read alongside the ERA's other reforms, including the removal of the 10% support threshold for statutory recognition requests and changes to balloting rules.

“Together, these reforms give unions significantly more power during recognition campaigns,” he said. “Employers should take a holistic view of the ERA's reforms rather than treating access rights in isolation; the cumulative effect of changes to recognition, access, and industrial action law will require a coordinated response.”

Convery said that with the government indicating a likely commencement date of October 2026 for the new rights, employers should begin workforce and operational planning now, including reviewing site security protocols, visitor policies, and communication strategies.

“Employers should conduct an internal audit of current union relationships, recognition agreements, and the composition of the workforce to identify where access requests are most likely to arise,” Convery said. “A clear, written access request policy that sets out who in the business has authority to respond to requests, what internal approvals are needed, and how legal advice will be obtained when required, should also be developed.”

Black said engagement with trade associations and sector bodies is also advised, so employers can understand emerging practice and any sector-specific guidance that may develop alongside the code.

“Employers should consider proactive engagement with employee representative bodies, where these exist, as a means of ensuring effective employee voice through channels within the employer's control, which may reduce the pressure for external union access,” Black said. “HR, operations, and senior management teams should also be briefed on the new regime so that access requests are not handled reactively or inconsistently across the business.”