How British employers can prepare to receive first ERA trade union access requests

On 30 October, one of the Employment Rights Act's most significant industrial relations reforms will take effect and will see independent trade unions gain new statutory rights to request physical and digital access to workers, regardless of whether the employer recognises the union.

• Read more: what the Employment Rights Act means for your business

Employers should assume that access requests could start arriving on the very first day the regime comes into force: Friday 30 October. The new regime will allow qualifying independent trade unions to seek access for purposes including meeting, supporting, representing, recruiting and organising workers, as well as facilitating collective bargaining.

Since the new regime was announced, many organisations have focused on understanding the legal framework within which the access rights will operate. However, the real challenge for employers in the coming weeks is operational readiness.

A statutory access request could arrive by email or post and trigger relatively short timescales for response and negotiation. Employers that have not established clear internal processes risk confusion, delay and inconsistent decision-making at exactly the point when the organisation needs a coordinated response.

The question for employers is therefore not whether they understand the new law. It is whether they are ready to receive a request.

The statutory timetable starts as soon as the union makes an access request. The employer has 15 working days, beginning on the following day, to respond and confirm whether it accepts or refuses the request in whole or in part, together with the required supporting information.

The employer's response then triggers a 25-working day negotiation period, during which the parties should agree the practical access arrangements, record them in writing and notify the Central Arbitration Committee (CAC).

If they cannot reach agreement, either party may refer the dispute to the CAC. Ordinarily, the referral must be made within 55 working days of the day after the union submitted its request. Employers should not assume that informal discussions, requests for clarification or proposed extensions of time will pause or extend any statutory deadline.

The biggest risk: the request goes unnoticed

One of the most common concerns we hear from clients is surprisingly simple: what happens if an access request arrives and nobody recognises what it is?

Trade unions may send requests electronically to an address specifically designated by the employer or, where no such address exists, to a publicly available contact address. Requests may also be sent by post to a registered office, head office or principal place of business.

Internal guidance should explain what a statutory access request looks like, who must be notified and, importantly, what managers should not do. Specifically, managers should not ignore, reject or attempt to negotiate requests themselves. Instead, they should gather basic information, preserve the request and escalate it promptly to the appropriate HR or legal team.

Organisations with multiple sites, decentralised HR functions or operational managers who routinely receive external correspondence may be particularly exposed if they have not established clear governance arrangements.

Prepare a negotiating position now

Arguably the most important preparation step is deciding what the organisation's preferred position would be if a request arrived tomorrow.

The new regime is not simply a question of accepting or rejecting access. Employers will need to negotiate practical arrangements covering issues including which workers are in scope, which locations are covered, methods of physical and digital access, timing, frequency, notice periods, facilities, conduct requirements and governance arrangements.

Access should not unreasonably interfere with the employer’s business and steps to facilitate access need to be reasonable. Therefore, employers should also think about practical issues in advance, including security procedures, visitor arrangements, health and safety requirements, personal protective equipment, data protection controls and site-specific operational constraints. These issues are often easier to understand before a live negotiation begins than during it.

Forward-thinking employers are already undertaking internal planning exercises to identify in particular: operational constraints; acceptable compromises; evidence-based red lines; alternative proposals; and the stakeholders who will need to be involved in negotiations.

Given the statutory presumption in favour of access, employers must be able to support any decision to resist a request in whole or in part with clear evidence. The framework identifies limited circumstances in which an employer must refuse access, as well as circumstances in which refusal may be regarded as reasonable.

While some grounds are objective – for example, where the employer has fewer than 21 employees – many require a fact-sensitive assessment. An employer seeking to refuse access because it would interfere with health and safety, for instance, will need to demonstrate the specific risk and explain why appropriate safeguards or alternative arrangements would not address it. A general assertion will not be sufficient.

Internal forward-planning is particularly important for employers with complex operations, remote workers, customer-controlled premises, outsourced services or shared workplaces.

Review existing union arrangements before a request arrives

Employers should also remember that a trade union access request may not arise in a vacuum. Existing industrial relations arrangements may have a significant bearing on how a request should be handled.

An employer may, for instance, already have a recognised trade union representing some or all of the workers covered by the request. There may also be an existing access agreement in place, a pending statutory recognition application, a derecognition process, or another trade union access request already proceeding through the statutory framework. In some circumstances, the existence of these overlapping arrangements may provide reasonable grounds for refusing all or part of a request.

Part of the initial assessment should be to identify any existing recognition agreements, access agreements, ongoing recognition proceedings, or rival union claims affecting the relevant workforce. These issues may become important in negotiations and could ultimately be relevant if a dispute reaches the Central Arbitration Committee (CAC).

As part of their readiness planning, employers should map existing union relationships across the business, identify any ongoing recognition or access processes, as well as ensuring this information can be accessed quickly by those responsible for responding to requests.

Digital access as important as physical access

Many discussions around the new regime focus on physical workplace visits. However, employers also need to consider requests for access to digital communication channels.

Organisations should review how trade union communications might interact with existing email systems, intranets, Teams channels and other workplace technology. Clear thinking will be needed around governance, security, moderation, privacy and the distinction between employer and trade union communications.

Create an audit trail from day one

Access disputes may ultimately reach the CAC. Employers should therefore be prepared to maintain accurate records of requests, negotiations, evidence and decision-making throughout the process. Clear record-keeping and documentation should form part of the organisation's readiness planning rather than an afterthought once a request is received.

The time to prepare is now

30 October is only weeks away. Access requests could begin arriving immediately, and those requests may raise difficult questions about operational continuity, security, workforce relations, data protection and industrial relations strategy.

The employers best placed to respond will not necessarily be those that have studied the legislation in the most detail. They will be the organisations that have established governance structures, trained managers, mapped operational risks, reviewed existing union arrangements, prepared negotiating positions and developed practical tools before the first request lands in the inbox on Friday 30 October.