Beyond the Employment Rights Act: Trade union rights of access – further detail emerging

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Apr 14 2026

One of the most significant changes to workplace industrial relations introduced by the Employment Rights Act 2025 (ERA) is the introduction of rights for independent trade unions to access workplaces physically and to communicate with workers in person or digitally. Until now, there has been no general independent right for trade unions to access workplaces.

The new statutory framework

The government’s preference is for access arrangements to be agreed on a voluntary basis, outside the statutory regime. However, where this is not achieved, a statutory process can be initiated to negotiate an access agreement. If the statutory negotiations are unsuccessful, the Central Arbitration Committee (the CAC) has power to determine whether access should be granted and, if so, on what terms.

The CAC will be guided by a range of principles and factors when deciding whether to grant access or not, including principles enshrined in the ERA. The operation of a statutory access agreement should balance the right of the trade union to enter a workplace with the employer’s right to continue to operate without unreasonable interference.

The framework for the new statutory right of access is contained in section 59 ERA, which incorporates a new set of provisions into the Trade Union and Labour Relations (Consolidation) Act 1992. The government has been consulting on the practical and operational details of this framework and published its response to the consultation on 8 April 2026. The government has now also published a draft Code of Practice, to help employers and trade unions to understand and follow the new access rules. The draft Code of Practice is itself subject to a period of consultation, open until 20 May 2026.

Many of the practical and operational details of the access regime will be formalised in two different sets of regulations, which will come into effect by October 2026, alongside the coming into force of section 59 ERA.

Clarification of operational details

Further clarification has now been provided on the statutory regime for trade unions to request and gain access to workplaces, as well as how employers should respond.

Written Requests and Responses: Both trade union requests for access under the statutory process and employer responses must be in writing. Email is the preferred method, but post can be used if email is not reasonably practicable. Amongst other things, the trade union request will need to identify whether the trade union is seeking physical or digital access (or both), the nature of the access and the reasons for this. In its response, the employer must indicate whether it agrees to the request (fully or in part) or rejects it, with reasons for any rejection. Unless the request has been rejected, the employer is also required to provide specified information about affected employees. The draft Code of Practice contains standard form templates for both the trade union request and the employer’s response to make the process clearer and easier for both parties to use.
Time Periods for Responding to a Statutory Request and Negotiating an Access Agreement: Following the consultation, the government has extended the applicable time periods under the statutory regime (which can be further extended by agreement between employer and trade union or, in the absence of agreement, where the CAC allows this):
- Employer Response: Employers will have 15 working days (increased from the 5 working days initially proposed) to respond to a statutory access request. This gives the employer more time to consider the request and to handle any operational pressures.
- Negotiation Period: The trade union and employer will then have 25 working days (increased from 15 working days) to negotiate the terms of an access agreement. This is intended to allow more time for constructive discussions. Where agreement is reached, the parties must record the agreement in writing and confirm to the CAC that an access agreement has been reached.
- CAC Referral Period: If agreement cannot be reached, a referral can be made to the CAC. The referral period has been extended from 25 to 55 working days (i.e. until 15 working days after the end of the negotiation period) to align with the longer response and negotiation timeframes described above.
CAC Referral: Following referral, the CAC will decide whether to grant access. The CAC’s access decision will be made by a three person panel, unless the request reflects “model terms”, in which case the application will be determined by a single person panel and the CAC is more likely to determine that access should be granted. “Model terms” include provision for a minimum of 5 working days’ notice for the first visit under the access agreement; ongoing access of a frequency up to weekly; and a maximum duration for the access agreement of 2 years (although the parties can jointly ask the CAC to extend or renew an agreement).
Where statutory access rights must not be granted: The CAC must refuse statutory access rights in the following circumstances:
- Where the employer has fewer than 21 employees (this is because of the general administrative burden on small employers).
- Where the agreement has a maximum duration of more than 2 years or provides for a minimum notice period of fewer than 5 working days for the first visit under the agreement.
- If granting the request would threaten national security or interfere with the prevention, detection or prosecution of crimes. These are intended as very specific and exceptional reasons for refusal.
Where the CAC may have reasonable grounds to refuse access: The CAC may reasonably refuse an access request (but will not be compelled to do so) in specified situations, including where:
- The employer already recognises an independent trade union to represent one or more of the workers the requesting trade union wishes to access (or there is an ongoing statutory recognition process in respect of such worker or workers).
- One or more workers the requesting trade union wishes to access is already subject to a statutory access agreement.
- An employer receives multiple access requests for the same or overlapping workers, and no access agreement has yet been finalised or CAC decision made.
- The health and safety of a person covered by the proposed access agreement may be jeopardised.
Additional factors the CAC will have regard to: There are a number of terms of an access agreement that the CAC must consider to be reasonable steps for an employer to take to facilitate access or for the trade union to comply with in connection with access arrangements. These include the following:
- The employer should make available such accommodation and facilities as are reasonable in the circumstances to facilitate access in line with the agreement. However, employers will not be expected to make significant structural changes to (for example) their physical premises or IT systems to facilitate access.
- The employer must also ensure that, as far as reasonably possible, direct communications between its workers and the trade union are confidential.
- Other than on the first occasion of access, the trade union must provide a minimum of two working days’ notice of an upcoming access visit (physical or digital).
- The trade union representative seeking access to the workplace must comply with all reasonable instructions given by the employer (which may include completing relevant health and safety inductions and providing relevant identification or signing in at the front desk).
Enforcement and Penalties: To ensure compliance with the statutory access regime, a three-tier system of penalties will be introduced. Financial penalties can be imposed by the CAC, but only where the CAC has previously issued an order that steps be taken to ensure a statutory access agreement has been complied with. The CAC will consider factors such as the seriousness and duration of the breach, the reasons for it, the number of workers affected and the size of the employer when deciding the amount of any penalty. Subject to this, the level of penalties will be as follows:
- Up to £75,000 for a first penalty order;
- Up to £150,000 for a second penalty order arising from repeated non-compliance under the same access agreement; and
- Up to £500,000 for a third and subsequent penalty orders for repeated breaches under the same access agreement. Where an access agreement covers multiple workplaces, breaches across different effective workplaces will be treated cumulatively.

Next steps and implications for employers

There is a relatively short six-week period of consultation for the draft Code of Practice. Given that the government has already consulted on the practical and operational principles for the new statutory regime, it is unlikely that the final form of the Code of Practice will contain substantive changes, although there may be minor tweaks for clarity.

Employers, especially those who have until now had only limited engagement with trade unions, will need to start planning for how they will address any request for access rights, given that implementation of the new regime is now only six months away.

Employers who have no immediate expectation that an access request will be made may decide not to take any action at this stage, although the short timeframe for responding to a request (even after the extension of the time period for the employer’s response to 15 working days) means they will need to be prepared to react quickly if an approach is made. Employers anticipating a request for access may decide to take a more proactive approach, which could enable more flexible arrangements to be agreed on a voluntary basis without the statutory regime being triggered.

If you would like to discuss in further detail any of the points raised in this blog post, please get in touch with your usual Freshfields contact.

Authors

London

Apr 14 2026

The new statutory framework

Clarification of operational details

Further clarification has now been provided on the statutory regime for trade unions to request and gain access to workplaces, as well as how employers should respond.

Written Requests and Responses: Both trade union requests for access under the statutory process and employer responses must be in writing. Email is the preferred method, but post can be used if email is not reasonably practicable. Amongst other things, the trade union request will need to identify whether the trade union is seeking physical or digital access (or both), the nature of the access and the reasons for this. In its response, the employer must indicate whether it agrees to the request (fully or in part) or rejects it, with reasons for any rejection. Unless the request has been rejected, the employer is also required to provide specified information about affected employees. The draft Code of Practice contains standard form templates for both the trade union request and the employer’s response to make the process clearer and easier for both parties to use.
Time Periods for Responding to a Statutory Request and Negotiating an Access Agreement: Following the consultation, the government has extended the applicable time periods under the statutory regime (which can be further extended by agreement between employer and trade union or, in the absence of agreement, where the CAC allows this):
- Employer Response: Employers will have 15 working days (increased from the 5 working days initially proposed) to respond to a statutory access request. This gives the employer more time to consider the request and to handle any operational pressures.
- Negotiation Period: The trade union and employer will then have 25 working days (increased from 15 working days) to negotiate the terms of an access agreement. This is intended to allow more time for constructive discussions. Where agreement is reached, the parties must record the agreement in writing and confirm to the CAC that an access agreement has been reached.
- CAC Referral Period: If agreement cannot be reached, a referral can be made to the CAC. The referral period has been extended from 25 to 55 working days (i.e. until 15 working days after the end of the negotiation period) to align with the longer response and negotiation timeframes described above.
CAC Referral: Following referral, the CAC will decide whether to grant access. The CAC’s access decision will be made by a three person panel, unless the request reflects “model terms”, in which case the application will be determined by a single person panel and the CAC is more likely to determine that access should be granted. “Model terms” include provision for a minimum of 5 working days’ notice for the first visit under the access agreement; ongoing access of a frequency up to weekly; and a maximum duration for the access agreement of 2 years (although the parties can jointly ask the CAC to extend or renew an agreement).
Where statutory access rights must not be granted: The CAC must refuse statutory access rights in the following circumstances:
- Where the employer has fewer than 21 employees (this is because of the general administrative burden on small employers).
- Where the agreement has a maximum duration of more than 2 years or provides for a minimum notice period of fewer than 5 working days for the first visit under the agreement.
- If granting the request would threaten national security or interfere with the prevention, detection or prosecution of crimes. These are intended as very specific and exceptional reasons for refusal.
Where the CAC may have reasonable grounds to refuse access: The CAC may reasonably refuse an access request (but will not be compelled to do so) in specified situations, including where:
- The employer already recognises an independent trade union to represent one or more of the workers the requesting trade union wishes to access (or there is an ongoing statutory recognition process in respect of such worker or workers).
- One or more workers the requesting trade union wishes to access is already subject to a statutory access agreement.
- An employer receives multiple access requests for the same or overlapping workers, and no access agreement has yet been finalised or CAC decision made.
- The health and safety of a person covered by the proposed access agreement may be jeopardised.
Additional factors the CAC will have regard to: There are a number of terms of an access agreement that the CAC must consider to be reasonable steps for an employer to take to facilitate access or for the trade union to comply with in connection with access arrangements. These include the following:
- The employer should make available such accommodation and facilities as are reasonable in the circumstances to facilitate access in line with the agreement. However, employers will not be expected to make significant structural changes to (for example) their physical premises or IT systems to facilitate access.
- The employer must also ensure that, as far as reasonably possible, direct communications between its workers and the trade union are confidential.
- Other than on the first occasion of access, the trade union must provide a minimum of two working days’ notice of an upcoming access visit (physical or digital).
- The trade union representative seeking access to the workplace must comply with all reasonable instructions given by the employer (which may include completing relevant health and safety inductions and providing relevant identification or signing in at the front desk).
Enforcement and Penalties: To ensure compliance with the statutory access regime, a three-tier system of penalties will be introduced. Financial penalties can be imposed by the CAC, but only where the CAC has previously issued an order that steps be taken to ensure a statutory access agreement has been complied with. The CAC will consider factors such as the seriousness and duration of the breach, the reasons for it, the number of workers affected and the size of the employer when deciding the amount of any penalty. Subject to this, the level of penalties will be as follows:
- Up to £75,000 for a first penalty order;
- Up to £150,000 for a second penalty order arising from repeated non-compliance under the same access agreement; and
- Up to £500,000 for a third and subsequent penalty orders for repeated breaches under the same access agreement. Where an access agreement covers multiple workplaces, breaches across different effective workplaces will be treated cumulatively.