The Labour Party’s “Plan to Make Work Pay” published in the run up to the 2024 general election previewed a wide range of reforms to strengthen the rights of workers, most of which have found their way into ERA 2025”. As well as reforms to individual rights, a key objective was to improve workers’ “voice at work”, primarily through increasing the power of trade unions. Some measures, such as reduction in the thresholds for a strike ballot, have received a lot of publicity. Perhaps less well publicised but arguably more far-reaching is the new right for independent trade unions to request access to a workforce or part of a workforce.

Statutory provisions for access requests are set out in a new chapter 5ZA TULRCA, which is expected to come into effect in October 2026. There will be a Code of Practice (“Code”) issued by the Secretary of State, intended to offer practical guidance. A draft of the Code was published for consultation in April. Consultation closed on 20 May 2026. The final version is not likely to be published until shortly before the new law comes into effect although in our view the broad terms of the Code are not likely to change radically.

The statutory provisions and Code are both long and detailed, but the essentials are as follows:

Who is in scope?

Any employer with 21 or more workers may be subject to an access request from one or more independent trade unions. Small employers with less than 21 workers may still be in scope if they are part of a wider group that overall employs 21 or more workers.

The right of access applies regardless of whether the employer recognises any trade union and regardless of whether any of its workers are trade union members.

What does “access” involve?

Access can be physical access to the workplace or indirect access (e.g. via email), or a combination of both. Employers are expected to take reasonable steps to facilitate access, e.g. by sending out union communications using their internal IT systems, although they are not expected to make changes to premises or other assets simply to facilitate access. Access meetings should be private and unions may seek to exclude supervisors and managers from meetings, for example if they consider it would deter workers from speaking freely.

The permitted purposes of access are to:

meet; support; represent; recruit and organise workers, whether or not any of those workers are union members; and
facilitate collective bargaining

Unions cannot use their rights of access to organise industrial action.

How is access agreed?

The draft Code emphasises that access should be agreed voluntarily wherever possible but if it is not then an independent union can make a formal request for access using a prescribed form set out in the Code. Once the formal request is made, although the parties can agree extensions at various points, the standard timeline to reach agreement is relatively short.

On receipt of a formal access request the employer has 15 working days to respond (again using a standard form provided in the draft Code). Unless the employer agrees the request in full there will then be a 25-working day period for negotiation. If at the end of this time there is no agreement the union has 15 working days to refer the application to the Conciliation and Arbitration Committee (“CAC”) for a determination.

CAC has the power to decide whether access should be granted, which workers should be within scope and on what terms access is granted. CAC must balance the right of the trade union to enter the workplace with the employer’s right to continue to operate without unreasonable interference. However the presumption in the Code is that access will be granted, with very limited exceptions. Circumstances in which CAC may (but does not have to) refuse access include:

the employer already recognises an independent trade union that represents one or more workers within the scope of the access request;
there is already a statutory access agreement in place that covers one or more of the workers within scope of the request under consideration;
there are concurrent, overlapping access requests;
access may jeopardise the health and safety of anyone covered by the proposed arrangements.

The draft Code references “model” access terms which are likely to include physical access of up to once a week, with virtual access by email or online meetings in addition. Unions will be expected to give 2 days’ notice of access, except for the very first exercise of access rights, when 5 days’ notice are required. Access should usually take place within normal working hours but where possible during rest periods or the end of shifts, to minimise disruption to the business. Employers are encouraged to allow access during events such as induction or training. This offers the opportunity both for unions to access a number of workers at the same time and for the business to minimise disruption to its day to day operations.

The draft Code specifies that no access agreement will last longer than two years.

What happens if there are disputes or one party breaches an access agreement?

Copies of all access agreements, whether voluntary or concluded under the statutory process, must be lodged with CAC.

The draft Code recommends that both the employer and employee nominate a lead contact who would be tasked with trying to resolve disagreements arising from access agreement. If the parties cannot resolve disputes then either employer or union may request CAC to make a determination. This must be done within 3 months after the matter that is disputed took place.

If CAC finds a complaint is well founded, in the first instance it may alter the terms of the agreement or issue an order with specified steps to ensure compliance going forward. For “repeat offences” CAC may order the offending party to pay a penalty fine on an escalating scale:

up to £75,000 for a first penalty order
up to £150,000 for a second order
up to £500,000 for subsequent breaches. If there is continuing non-compliance this level of penalty can be issued “on repeat” without any requirement to go through the fill enforcement process.

Actions to consider

The government’s clear hope and intention is that the new right of access will increase trade union influence across all industry sectors, including but not limited to increasing formal recognition of unions for collective bargaining.

Trade unions need to sign up members to fund their activities and are no doubt already thinking strategically about which employers to prioritise for access requests. Employers who have already received attention from trade unions and possibly rejected approaches for recognition are very likely to be in the “first wave” of businesses targeted for access rights.

Although relevant for all employers with 21 or more workers, employers who believe they are likely to be towards the top of any union’s priority list for workplace access may find the following points for consideration helpful:

How well is the organisation doing at listening to the “voice” of the workforce? What channels are there for employees to have their say, and for managers to explain the business perspective?
Are there known issues that provide a focus for discontent within the workplace? Could they be resolved or ameliorated to increase employee satisfaction and demonstrate that existing feedback channels work well?
Is there merit in taking a proactive approach and seeking to agree voluntary access arrangements with an independent union that the business feels it could work with? In taking this step, it is important to bear in mind that the union partner is likely to see access as a stepping stone to recognition.
What can the business reasonably accommodate if access is sought? Regardless of whether the decision is to be proactive or “wait and see”, given the relatively short timescales under the formal process it is useful to consider in advance possible scenarios and identify what the issues might be from the employer perspective, including where there is room for flexibility as well as any “red lines”.

How Greenwoods can help

If you have any concerns, questions or would like to discuss anything mentioned in the article above, please do get in touch.

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