The new ‘right of access’ for trade union: what employers need to know

In conversations with HR professionals, we are already hearing two contrasting assumptions: some say “it won’t affect us because we already have a recognised union” whilst others say “it won’t affect us because we don’t have a recognised union.”

So, who is right? In short: neither assumption is accurate. In this article, we explain what employers need to know — and why now is the time to prepare.

What is the new right to access?

Independent trade unions will be given a statutory right to access (digitally and physically) workplaces with 21 or more employees. This new power will be legally enforceable via intervention  by the Central Arbitration Committee (CAC), with financial penalties and reputational risk for employers who fail to comply.

The government has published a code of practice (Code) to provide employers with guidance on how the right will operate, which includes a model access request and response form.  Employers will need to think about how to prepare for this reform and ensure a robust access procedure is in place.

What is the purpose of access?

The right to access will grant independent trade unions the ability to access workplaces to:

• meet, support and represent workers;
• recruit and organise workers; and
• facilitate collective bargaining.

The right does not grant access for unions to enter for the explicit purpose of organising industrial action.

The Code envisages that employers may be required to grant ‘weekly’ access to unions.  

What is ‘digital access’?

The new right to digital access has been included to reflect modern methods of workplace communication. Typical indirect forms of access may involve employers sending out communications or invites to meetings or webinars via company IT platforms. Any digital meetings will require employers to consider security and privacy concerns, such as whether recordings may be shared with unions and preventing employer access to such recordings where appropriate.

The Code also envisages direct forms of digital access, such as the employer providing employee contact information to unions. This would require the employer to process employee data in compliance with relevant data protection obligations.

The Request and Response Process

This right will be formalised via ‘access agreements’ between the union and employer.

The first stage is to seek to voluntarily agree an arrangement.

Where a voluntary arrangement has not been reached, the Code outlines the following formalised request and response process: 

• The union will request access in writing. The request will cover the purpose of the request, the type of access sought (digital and/or physical), the type of workers affected, the proposed frequency and timing of the access, the locations to access, and confirmation of the union’s independent status.
• Employers will have 15 working days to respond. Their response must include their decision to accept or reject the request, the employer’s reasoning for any rejection and relevant details of workforce data. Practical details of visiting arrangements may also need to be included.
• A negotiation period of 25 working days will follow to agree terms of the access arrangements.
• Where no agreement can be successfully reached, the union has 55 days after the end of the negotiation period to apply to the CAC who will review the request and determine the terms of the access arrangements. The CAC’s starting point will be that some level of access should be granted to the union but there are grounds of which requests can be refused.

Does it apply if we already have a recognised union?

This new right applies to all workplaces with 21 or more employees (to be assessed across “associated employers”), regardless of whether there is a recognised union, as independent trade unions may make separate access requests and the right of access is separate from recognition (although it may be a precursor). Different access requests could be made for different workers, or “bargaining units”, too.

However, the Code is clear that existing recognition is a relevant factor when the CAC is assessing whether to refuse to order access.

It is possible that trade unions may focus on organisations without recognised unions first, but that remains to be seen.

Enforcement and penalties

Disputes and breaches of access arrangements will be handled by the CAC. The CAC will be able to:

• order compliance with the access arrangements;
• amend the agreement; and
• declare a breach and require corrective steps.

Where a complaint is upheld, the CAC may impose the following financial penalties:

• up to £75,000 for a first breach;
• up to £150,000 for a second breach; and
• up to £500,000 for third or subsequent breaches.

The penalty level will depend on the seriousness and duration of breach, whether conduct was deliberate, the number of workers affected and employer size and compliance history. These penalties may also be publicly disclosed, raising reputational risks.

What should employers be doing to prepare

Employers should treat this new right as a significant process change, not just a legislative update. The previously accepted ‘access by permission’ system has been replaced by structured, enforceable access rights, breach of which may expose employers to significant financial penalties. Employers who have previously not engaged with unions may start to receive access requests.

If you have any questions arising from this article or would like to discuss your business’s position in light of these upcoming changes, please contact a member of our employment team.

This article is for general information purposes only and does not constitute legal advice or a comprehensive statement of the law. Specific legal advice should always be sought in relation to individual circumstances.

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   • Jemma Pugh

   • Legal Director
   • Employment

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   • Kendal Youngblood

   • Associate
   • Employment

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