The Employment Rights Bill – Consultation on Trade Union Changes

Duty to inform workers of the right to join TU

Under the current legislation, the only thing an employee needs to be told is whether or not the employment is governed by a collective agreement (and further details if it is).

The ERB will impose an express duty on employers to issue a statement informing employees of their right to join a TU. The consultation covers the following, some of which indicate where the Government expects the legislation to end up:

What should be included in the statement:

• The consultation points towards the statement being based on a standardised template, setting out a brief overview of what TUs are, what TU membership means, and listing TUs.

How should the statement be delivered:

• A number of options are considered, but the likely approach is that, for new employees, the statement can be sent directly (by email or letter) or indirectly (via a noticeboard or the intranet).

There are questions around how it should be communicated on an ongoing basis, and the frontrunner is that it can continue to be accessible indirectly, as above. There is also the option being considered for employers to inform employees directly on an annual basis, either by sending the statement in full or a reminder of where to find it.

TU’s right of access

The second consultation covers the new proposed right allowing TUs to access workplaces in order to meet, support, represent, recruit or organise workers and/or to facilitate collective bargaining.

The starting point is for the TU to request access, and for the employer to respond. If agreement can’t be reached, the dispute can be referred to the Central Arbitration Committee (‘CAC’).

The consultation document is lengthy and detailed, but the key issues for consultation can be summarised as follows:

1. The nature of the request

It is likely that this will need to be in writing, sent directly from the TU to the employer, and contain information including:

• A description of the employees who the TU wants access to; the purpose of the access, whether it is physical or digital access (e.g. through the intranet)
• When the first visit is proposed, and how frequent they will be
• The location of the site to which access is requested
• The employer’s response should:
• Make it clear whether the request is accepted or rejected
• If accepted: confirm the location of the agreed workplaces, and provide contact details so arrangements can be made
• If rejected: say what part is rejected (if not all of it), and why
• Provide contact details for the employer

2. Timings:

It is proposed that the time limits around the access request will be notably tight, so that “access requests are dealt with quickly and employers are not left in an ongoing uncertain position”:

• Employer must respond to requests within 5 working days
• A negotiation period of 15 working days after response
• A maximum of 25 working days from the date of the request to refer to the CAC if agreement can’t be reached
• Where the CAC orders that access be granted, access to be allowed from 5 days after the Order
• Once an access agreement is in place, it will expire after 2 years

3. The CAC’s decision making

There is consultation on which employers will be covered. The options are:

• Only employers with 21 or more employees;
• No fixed limit, but the CAC to decide on a case by case basis; or
• All employers, with no exemption.

The proposal is for the first option – a fixed limit exempting small employers.

In addition, there are a list of factors that the CAC will need to consider when determining whether it would be reasonable for access not to be granted:

• Whether there is already a recognised TU
• Whether it would put the employer to unreasonable difficulty (with examples given of constructing new meeting places or implementing new IT systems)
• Whether the request is within the parameters of the proposed ‘Model Agreement’ in relation to frequency of access (no more than weekly) and notice periods for absence (not less than 2 days)

4. Penalties for non-compliance

The options for consultation are a maximum fine of £75,000 per breach, or £75,000 for a first breach and £150,000 for subsequent breaches, with the second option being the proposed preferred option.

When determining the level of the fine, the CAC will need to consider:

• The gravity of, duration of, and reason for the failure
• The number of workers affected
• The size of the organisation
• Previous history of non-compliance

Next steps

The consultation closes on 18 December, and the Government is proposing a further consultation in spring 2026 to support the drafting of a Code of Practice in relation to TU access.

It is currently proposed that all of the above will be set out in secondary legislation and will come into force in October 2026.