With new rights soon coming into force, employers face a fundamental shift in how trade unions can engage with their workforce.
The right for trade unions to access workplaces, in person and digitally, even where they have few or no members, could have the biggest impact on UK industrial relations since statutory recognition was introduced in the 1990s.
The final Code of Practice on Trade Union Rights of Access was published in July 2026 and the right is expected to come into force on 30 October 2026. But what will that right entail?
What is the right of access and what has changed?
Under existing law, trade unions recognised for collective bargaining (recognised trade unions) have limited rights to access the workforce in the bargaining unit they represent. Those rights are agreed with the employer, either in a recognition agreement or ad hoc, for example for statutory collective consultation or bargaining.
Whether recognised or not, a union may send an accredited representative to accompany a member in disciplinary or grievance proceedings, and there are time-limited rights during the run up to a CAC ballot for statutory recognition.
The Employment Rights Act 2025 has introduced extensive new access rights by adding sections 70ZA to 70ZN to Trade Union and Labour Relations (Consolidation) Act 1992. The purposes for which access is to be allowed are wide:
(a) to meet, support, represent, recruit or organise workers (whether or not they are members of a trade union) and
(b) to facilitate collective bargaining.
The access right excludes organising strike action but otherwise covers almost anything a trade union might want to do in the workplace. That is significant because access is available even if none of the workers have shown any interest in union membership or activity. It is specifically designed to help unions build membership and gain wider recognition by employers.
The key right is for “one or more officials of the union to physically enter a workplace access to premises, or communicate with the workers, or both” (s.70ZA2(a)). Communication includes digital access and electronic communication, but providing digital access does not relieve the employer of the obligation to provide physical access.
There are slight differences between digital access under the Code addressed here and the draft updated Code for access and unfair practices during recognition and derecognition, particularly in relation to direct emails to workers.
Those differences arise from data protection rights. In a recognition process, an independent body may email workers directly, but that does not mean a union is given personal email addresses without consent.
For general workplace access, it is for the employer to facilitate digital access, if agreed, while protecting workers’ personal data; for example, by a bcc email. Reasonable digital access will be informed by the electronic methods the employer uses to communicate with its workers.
Only trade unions with a certificate of independence are covered. The right applies only to employers who, with any associated employers, employ at least 21 workers. It does not apply to private dwellings, although hybrid workplaces are covered, or where access would present a genuine risk to national security or to the detection or investigation of offences.
The legislation leaves little scope for blanket refusal and the size of penalties signals the government’s determination that employers should provide access of some sort, whether physical, digital or often both.
How does a trade union obtain the right of access?
Where a trade union already has some agreed access rights, the Code encourages negotiation to expand them to what could be obtained under a statutory access agreement.
Where a union is not recognised, or an employer refuses to expand agreed rights, the union should seek voluntary agreement. It triggers the statutory timetable by sending a request complying with the template annexed to the Code. Key elements include:
The employer has only 15 calendar days to respond, also using a template annexed to the Code. Its response must state which elements are accepted or rejected, and why, in terms which allow the union to understand the concerns and negotiate. The parties may agree to extend the response period.
After the employer responds, the parties have 25 days to agree access terms and must negotiate “in good faith”.
If agreement cannot be reached, either party, normally the union, may refer the matter to the CAC. The CAC can impose terms or allow more time. If negotiations still fail, it will hear both sides and decide whether access takes place and on what terms. It is likely to order at least some access at most employers.
The agreement sets the structure for access, but the union must still give notice of each occasion. It remains in force for two years and can be renewed by agreement or followed by a further request.
What factors will the CAC take into account?
The Access Principles are set out at section 70ZF (2) of the 1992 Act:
(a) officials of a qualifying trade union should be able to physically enter a workplace or communicate with workers (or both) for any of the access purposes in any manner that does not unreasonably interfere with the employer's business;
(b) an employer should take reasonable steps to facilitate access by officials of a qualifying trade union;
(c) physical entry into a workplace should not be refused solely on the basis that communication with workers by means not involving physical entry into a workplace is permitted;
(d) communication with workers by means not involving physical entry into a workplace should not be refused solely on the basis that physical entry into a workplace is permitted;
(e) access should be refused entirely only where it is reasonable in all the circumstances to do so.
The overall approach is that trade unions should be given access to workers, provided it does not unreasonably interfere with the employer’s business and the employer is not required to take “unreasonable steps”. Reasonableness is likely to be construed in favour of facilitating access. The Code’s examples of unreasonable steps are fairly extreme, such as building a new building or new IT facility.
What are the penalties for breach of an access agreement?
Complaints about compliance may be made to the CAC, which can:
Conclusion
The Code sets out the government’s rationale that a “meaningful right for trade unions to access workplaces” is central to achieving the “modern workplaces [which] are essential to a productive economy”.
According to the Certification Officer’s latest annual report, covering 2024-25, trade union membership increased by over 21%, from 5.5 million to 6.7 million. Membership is likely to increase further as a result of job insecurity related to AI and economic factors. That increase is likely to be accelerated both directly by the greater presence and reach of trade unions and indirectly as union membership and activity become normalised by their increased presence in the workplace.
In our view, although there are plainly benefits to workers of better physical and virtual access by trade unions, the changes may have unintended consequences.
The absence of any requirement that the union seeking access has members at the employer gives scope for abuse: some unions could use access requests opportunistically to start organising in companies where other unions have members but are not recognised, and where the accessing union has no members or experience. Recent years have seen the rise of small new unions, many without central support teams, taking on high-profile employers for campaigning purposes rather than truly to benefit employees.
The CAC has recruited 23 new members to cope with the expected influx of work under the Employment Rights Act 2025, but we query whether that will be enough given the tight statutory timetable. Experience with the Employment Tribunal shows how quickly backlogs can develop, and how delay can result in industrial strife while employers and unions wait for disputes to be resolved.
Finally, there is the question of how the CAC and appeal courts will interpret when it is “reasonable in all the circumstances” for an employer to refuse access: a topic calling out for clarification by case law. We think employers
will face real challenges in arguing that union proposals are so unreasonable as to preclude any access. The Devereux industrial relations team has already started working with our instructing firms to create proactive solutions including workable access agreements.
Silk 2015 | Call 1993
Call 2009
