Trade union access rights ‘a turning point’ for UK employers

As you will be aware, UK employment law is on the verge of a major transformation - the most significant employment law reform we’ve seen in a generation. The Employment Rights Bill is making its way through parliament and on has moved into the Committee Stage in the House of Lords.
 
The raft of changes proposed is vast and one of the most significant is the proposed new right for trade unions to request access to the workplace for the purposes of recruiting, organising, and representing employees. Business groups have warned that the changes could place additional burdens on employers, particularly those without any current union presence and although the final rules are still being shaped, there’s already a clear direction of travel: more union access, more employee engagement, and a need for employers to be ready. We’ll speak to an employment lawyer advising clients on these issues.

The new access rights proposed under the Employment Rights Bill are wide-ranging. For the first time, trade unions will be able to request not only physical access to workplaces, but also digital access, potentially reaching employees via company intranets, email systems, and other communication platforms such as Zoom and Teams. 

Employers will be expected to engage constructively with these requests. They’ll have only a short time  - possibly as little as five working days - to respond. If agreement can’t be reached, the Central Arbitration Committee will have powers to step in, decide the terms, and even impose financial penalties if access is unreasonably refused.

What’s particularly new and striking is the digital aspect. We’re waiting for further guidance to clarify exactly what that will cover, but it’s already clear that the expectation will be for unions to be able to engage with employees, even where the workplace is virtual or dispersed.

With that in mind many employers, including many of our clients, are already taking steps to prepare for this. So, for example, reviewing internal employee relations strategies, thinking about how to manage physical and digital access, training managers, and making sure clear protocols are in place.

Lucy Townley is an employment lawyer based in our Edinburgh office and she has been working with a number of clients on this and earlier she joined me by phone to discuss it. I put it to Lucy that this is not about resisting union access, rather understanding which areas of the workforce might be more open to it, and why:

Lucy Townley: “Yes, that's absolutely right. So it's really worth taking stock of the industrial relations climate at all organisations before any request for union access actually lands. So we know that unions are more likely to focus on workplaces where they think they'll get traction, and that normally means workplaces where staff are feeling unheard, or disengaged, or where there are known to be disputes about things, so for example, about pay or about working conditions. So, if there's these signs of dissatisfaction, or departments where communication between employees and management is patchy, that's something to really take seriously. So we've been talking a lot to clients about reviewing things like their grievance trends, their turnover and the information that comes out of exit interviews, for example, all of which helps employers to get a clearer picture of employee morale and really what the attitudes are like on the ground. So this will allow employees to identify which areas of the business are probably most likely to be targeted for union access, and what we're saying is, for those clients who can spot and address employee concerns really early, this is likely to make a big difference to how and their employees will respond to union engagement later.”

Joe Glavina: “As I understand it, employers are going to have fairly limited time to respond when a union makes an access request so it’s important they’re ready for it. Tell me about that, Lucy.”

Lucy Townley: “So once a union makes a formal request for access, the timeline that employers have to respond will be really tight, so we're talking just a few days. So that's why it's so important for employers to be thinking now about what they could agree to and what their practical limits of that agreement might be. So, for example, you might decide that union meetings can happen at the end of a shift but not during core operating hours, or maybe that access to canteens, or social spaces, is okay, but access to other areas isn't possible for example, for health and safety reasons on working floors. The same applies, I guess, to digital platforms. So, employers might need to think about what their red lines are in respect to digital access, so what source of messaging and materials would be acceptable to them? Having those kind of boundaries worked out in advance means that employers will be able to respond constructively and quite quickly if they receive an access request and what we know is that the Central Arbitration Committee will be able to impose terms if agreement can't be reached. So employers who don't think through their position in advance are likely to have something imposed on them that they could have shaped more constructively with just a little bit of forward planning. This will also be really important, because it will mean that employers are able to explain the rationale between any limitations that they've imposed, if it's ever challenged, and to explain to the Central Arbitration Committee quite why they are the red lines that the employer needs to put in place.”

Joe Glavina: “I’m aware that some of the work you’ve been doing with clients has been around simulating access requests and walking through what might happen. Is that right?”

Lucy Townley: “Yes, absolutely. So we've been advising our clients to simulate what these access request scenarios might look like, and to kind of walk through how the access request might play out in advance. Really, the intention of that is to stress test the processes and it helps to answer questions like, who will handle the request, who needs to approve the response, maybe, what teams need to be involved in the discussions? So for example, it'll depend on the business, but for some clients, it'll need to be legal, HR, Operations, IT, and there's lots of different teams that might need to be involved in those discussions. It’s also really important that we think about what happens to those access requests in respect of digital platforms. So for example, how access to those digital systems in particular can be granted and what kind of specific access rights they need. So for example, do they need admin account access? Running through this sort of request process scenario in advance will let you stress test the weak points in the process and then means that businesses won't be scrambling around when a real request comes in. I think for some of our clients who already have union engagement in other parts of the business they might already have access arrangements in place, and they're really good templates to use as a starting point, but for other clients who haven't really had trade union access or a trade union presence in the past, it is probably a good idea to get some support with drafting an agreement. The more familiar that the teams are with what agreements might look like, or what has been considered, will mean that their response can be smoother and more confident when going back to the union on the access request.”

If you would like help preparing for these changes please do contact Lucy Townley – her details are on the screen for you. Alternatively, of course, you can contact your usual Pinsent Masons adviser.