Code to regulate trade union workplace access finalised

Andy Dixon and Sue Gilchrist of Pinsent Masons made the recommendation after the UK government published its finalised code of practice concerning the right of trade unions to access workplaces.

• Read more: what your business needs to know about implementing the Employment Rights Act

A statutory right of access for trade unions to workplaces in Britain is provided for under the Employment Rights Act (ERA) in what represents a significant expansion of union rights. The law imposes a duty on employers to take reasonable steps to facilitate access. The code, the creation of which is provided for under the Act, provides the practical framework within which the access rights will operate.

Among other things, the statutory process requires unions to submit a written access request and details a process that follows thereafter, which is designed to facilitate an agreement between the two sides on access. It provides scope for an independent tribunal, the Central Arbitration Committee (CAC), to impose an access agreement on the parties if they cannot agree one between them.

Employers and unions are encouraged to reach a voluntary access agreement. The process for doing so is not governed by the code, which only applies where unions trigger the statutory process.

Dixon highlighted how the code does provide employers with some limited scope to refuse or seek to limit access on certain grounds, including health and safety, operational disruption and security. The code further confirms that in circumstances where an employer already recognises an independent trade union that represents workers that are subject to an access request, then the CAC may refuse that further access request. This, Dixon said, gives employers options.

“Employers should think about which unions they want to have access as they could set up ‘sweetheart’ access agreements with them,” Dixon said.

According to Gilchrist, the finalised code (46-page / 522KB PDF) contains “meaningful” changes to the draft code the government consulted on earlier in the year – the most notable of which, she said, is making clear that unions can trigger the statutory process without first exhausting attempts at agreeing access arrangements voluntarily. She urged employers to “revisit any assumptions made following the initial consultation”, describing the finalised code as “a pro-access framework”.

Gilchrist highlighted how the code provides for rights of access to workplaces on both a physical and digital basis. Digital access is expressly described in the code as complementary to, rather than a substitute for, physical workplace access, if that is what the union requests.

The code also contains more guidance around how access should be enabled to account for hybrid, remote, shift-based and other non-standard working arrangements, as well as in workplaces such as residential care settings and construction sites. In relation to construction sites specifically, the code states that “access should be able to take place at times when workers are assembled collectively, including at the beginning of shifts, during site inductions, toolbox talks, safety briefings and other workforce meetings”.

The finalised code also contains strengthened provisions around privacy and monitoring. There are more detailed expectations around confidential union meetings, and the code makes clear that employers should ensure, so far as reasonably possible, that communications between workers and trade unions remain private.

The role of the CAC has also been further clarified, with the code setting out expanded procedural rules, record-keeping expectations, model access terms, enforcement mechanisms and the factors the CAC will consider when determining disputes. The model terms include weekly access, privacy protections and reasonable employer support measures.

“Employers should now review workplace access protocols, facilities, communication channels and manager training in anticipation of the new framework coming into force,” Gilchrist said.

Alongside the finalised code on trade union workplace access, the government published its response (25-page / 261KB PDF) to an earlier consultation on updates to a separate code of practice concerning union access and unfair practices during the recognition and derecognition process. Dispute resolution body Acas has also revised its draft code of practice concerning time off for trade union duties and activities (44-page / 435KB PDF).

The government’s two codes are expected to be passed by the UK parliament and come into force in October, together with other measures under the Employment Rights Act that will extend trade union rights in Britain.