UK employers prepare to handle new trade union workplace access requests

Employers are preparing for the new trade union workplace access rights which will be coming into force in just a few weeks’ time, on 30 October. From that date, independent trade unions will be able to formally request physical or digital access to workplaces under the new statutory regime. For HR, the challenge will be knowing how to handle those requests and how far employers can influence the arrangements that are ultimately put in place. We’ll speak to an employment lawyer who is advising clients on how to approach that process.

The new framework gives employers and trade unions an opportunity to negotiate and agree how workplace access will operate. If they cannot reach agreement, either party can take the matter to the Central Arbitration Committee, which can decide whether access should be granted and set the terms on which it takes place. 

Importantly, the legislation seeks to strike a balance. Unions should be able to access workplaces and communicate with workers, while that access should not unreasonably interfere with the employer’s business. Employers are also expected to take reasonable steps to facilitate access. 

So there is potentially a great deal for employers to consider when negotiating an agreement. Physical access raises questions around where and when union officials can meet workers, security, health and safety and the impact on operations. Digital access brings its own considerations around communications, IT systems, and privacy. Government guidance is already telling employers to consider how access can be balanced with operational needs and to develop processes for hosting union officials. 

And the detail around this matters. Arrangements that are unclear or fail to anticipate how access will work across different sites and different parts of the workforce could create difficulties later. So employers will need a coordinated approach from the outset, with HR and operational teams clear about how requests will be handled.

Anthony Convery is advising clients on those preparations and earlier he joined me by phone from Glasgow. I started by asking him how an employer should respond when its first workplace access request arrives:

Anthony Convery: “The key thing is not to panic and respond instinctively, but rather to take a considered approach and to have a process in place so requests are dealt with in a timely fashion, and in a consistent fashion, and that means ensuring that the request reaches the right people in the organisation quickly, the senior HR and operational leaders. It also means when a request is received, part of the process should involve checking that the request satisfies the statutory requirements. Employers also need to understand which workers and workplaces are covered by the request, and they need to gather all of the information that they need before responding in a considered manner and, underlying all of this, there needs to be a clear record of all communications.”

Joe Glavina: “Once an employer accepts that some form of access is likely, which aspects of the arrangements should they be looking to negotiate?

Anthony Convery: “There are a number of aspects of trade union access that employers should be seeking to negotiate. To give to give some examples. Employers will want a say in the frequency and the timing of visits and also the notice period, so what notice period does a union need to give in order to get access to the workforce? Employers will also want to have a say in which locations are appropriate for access and, looking at digital access, what that means in practice in terms of IT systems and privacy considerations. Other aspects include which workers are covered, meeting rooms and facilities, and where will the physical access actually take place on site?. It will be important to acknowledge health and safety requirements, security arrangements in particular sites, and also access to confidential or restricted areas. Key to all of this, though, is making sure that the operational requirements and business continuity are maintained so employers have a strong interest in ensuring that any access arrangements respect operational requirements and business continuity. Finally, for any type of access arrangement, it's going to be essential that there's a clear process for resolving future disagreements over the access arrangements.”

Joe Glavina: “What are the biggest mistakes employers could make when responding to an access request?

Anthony Convery: “I think one of the biggest mistakes that an employer could make is assuming that the request can simply be refused or taking a very confrontational approach to a request because the truth is that if a request is refused or ignored the trade union can make an application to the Central Arbitration Committee for access and then access can ultimately be imposed on the employer. So the key is to engage with the request and not simply to ignore it or push back on it in a confrontational way. Another mistake that employers could easily fall into is leaving the response to individual site managers and potentially failing to engage with statutory timescales because it is important that the right people within the organisation, the HR leaders, the operational leaders, have a role in responding to requests so that the timeframes are met and so that the organisation has a consistent way of dealing with requests for access. Other mistakes that employers could potentially make would be focusing on legal compliance and forgetting the employee relations aspect of all of this because this is essentially an employee relations issue and there needs to be a clear employee relations strategy in place in terms of communicating with the workforce. It would also be a mistake to negotiate vague arrangements that create potential future uncertainty. It is really important that any access arrangement is clear in how it will operate, and that it takes into account all of the practical arrangements that are going to be important in union access in terms of security, access to restricted areas, health and safety – all of those things need to be factored in so there isn't the potential for future disputes. Finally, employers need to bear in mind that when an access agreement is in place it will be in place for a considerable period of time so it's important to get it right first time.”

Anthony and the team are already advising a number of clients on the new trade union access regime, including how to handle requests and negotiate workable access arrangements. If you’d like help preparing for the new rights ahead of 30 October, Anthony and the team would be happy to help. Please contact Anthony in the first instance – his details are there on the screen for you.