One of the challenges of assessing legislation like the Employment Rights Act 2025 is figuring out what it important and what isn’t. You see it every time. A new piece of legislation is accompanied by breathless articles and LinkedIn posts asking ‘are you ready for…’ some new provision that then sits largely ignored once the commencement date has come and gone. Think of exclusivity clauses in zero-hours contracts, the right to make a training request or the prohibition of questions about health prior to making a job offer. All of these generated plenty of copy in the run up to implementation but were barely discussed afterwards and seem to have had little real impact. 

On the other hand, something really important can sometimes slip through without anyone thinking much of it. I remember when the Working Time Regulations were introduced in 1998. I was obsessed with shift patterns and the definition of night work and paid almost no attention whatsoever to the rather more straightforward right to paid annual leave. After all, most of the employers I was working with already provided paid leave, so how difficult could that be? 

So I am trying to approach the 2025 Act with a certain amount of humility. Some issues that generate a lot of early excitement will hardly ever be referred to again and some issues that we are largely ignoring might turn out to be hugely significant. I think the trade union right of access might fall into this second category. 

The right of access would give trade unions a right to enter into an access agreement that would allow them onto the employer’s premises for the purposes of organising and recruiting members, facilitating collective bargaining or providing employees with support and representation. 

The Government has just published its response to a draft consultation carried out at the end of last year and has started a new consultation on a draft Code of Practice that is scheduled to run until 20 May. Reading these two documents has made me appreciate judt how significant this new right will be. Here is how it will work. 

Step one: a union fills in a form setting out the nature of the access agreement that it wants to reach with the employer. The employer has 15 working days to respond. 

Step two: if the employer does not agree to the request in full there then follows a negotiation period where the parties are encouraged to seek agreement. This will last for a further 25 working days.

Step three: If there is a no agreement then the union can submit a claim to the Central Arbitration Committee which will make a determination of what access should be granted and under what conditions. Such an application should be made within 55 working days of the access request being made. 

Two gripes here. First of all the concept of ‘working days’ is really not helpful and just confuses everyone. Can’t we just measure things by the week? Secondly, this timetable is absurdly short. It actually represents a concession by the Government which at first had proposed that the employer would have to respond within 5 working days and would have had about a fortnight to negotiate an agreement. But moving from an impossible timetable to an impracticable one is not much of an improvement. For many workplaces the exact terms on which access will be granted will be complex and will involve the coordination of multiple departments. Expecting a detailed agreement to be negotiated in less than a month is hopelessly optimistic. 

The parties can agree to extend the response period – but not the negotiation period. However, if talks are continuing the draft code of practice suggests that the parties can continue past the deadline and once agreement is reached the union can submit a new request for access in line with the agreement that the employer can then just accept. This seems a sensible workaround – but the fact that a workaround is needed indicates an underlying flaw in the overall scheme. 

What access means

The nature of the access agreed or granted by the CAC will of course vary. The draft Code seems to envisage physical access being granted on an up to weekly basis with the union being able to hold meetings with either groups of employees or individuals. The employer will be expected to provide the same sort of facilities to the union that are used when it wants to meet its staff. That might mean meetings of the whole workforce in a canteen or auditorium  – or meetings with small groups on the shop floor or in break rooms. Digital access is likely to involve online meetings organised through whatever platform the employer uses to facilitate meetings. I particularly enjoyed this paragraph in the draft code:

Whilst employers will be required to take reasonable steps to facilitate access such as creating online calls or moving chairs and tables around to make space for a physical meeting, they will not be expected to make significant structural changes to, for example, their physical premises or their IT systems in order to facilitate access. It will be reasonable for the CAC to refuse access where the access request includes a requirement to make such significant changes. 

I struggle to imagine a union access request that required the employer to make ‘significant structural changes’ to the premises. But if I were the employer I think I would insist on the union being responsible for moving the furniture – and putting it back the way they found it when the meeting was over. Access agreements may turn out to be long and complex documents.

Overall, however, the draft Code of Practice seems pretty sensible and sets out sound advice on many of the complexities that the right of access might involve. For example, it talks about the need to respect the privacy of care home residents, ensuring appropriate DBS checks when granting access to workplaces where safeguarding is an issue, and considering health and safety briefings for union officials being granted access to hazardous environments. These are all matters that the union and employer may reach an agreement on – or which the CAC may determine if no agreement is reached. 

Enforcing an access agreement

One point that I hadn’t really clocked until I read the draft Code is that access agreements will be enforced by the CAC irrespective of whether they are negotiated or imposed. I had assumed that – as with the statutory union recognition scheme – parties who reached an agreement without the need for the CAC to make a determination would be left to themselves to implement and police it. But no. When an agreement is reached it is lodged with the CAC. It then has the same status as an agreement that is imposed by the CAC if no agreement is reached. 

If either party feels that the other has breached the agreement it can apply to the CAC for a determination. The CAC may issue a declaration and direct the party at fault to comply with the agreement. In the face of repeated or continued breaches the CAC can issue what are in effect fines – payments made to the Government – requiring the guilty party to pay up to £75,000. That maximum amount rises if the party continues to act in breach of the agreement so that by the time the third penalty is being imposed, the amount of the fine may be as high as £500,000. Employers negotiating access agreements will need to make sure they do not make promises that they will be unable to keep. 

Access agreements, once made, cannot be unilaterally revoked by either party. But the Government has made it clear that the CAC should not grant an access request unless it expires automatically after no more than two years – so employers will at least not be stuck in an unworkable agreement indefinitely. But any employer negotiating an agreement will have to make sure to include their own expiry period because I can’t find any provision that provides for the automatic expiry of an agreement that has been lodged with the CAC after being negotiated. 

A game-changer?

Looking at the scheme as a whole I am struck by how complex the process is and how easy it is for a union to put in a request that an employer will have to engage with in a meaningful and constructive way. There are no entry requirements – no membership thresholds that the union has to meet before it can request access. Indeed the whole process is designed to help unions recruit members in a workplace where they have little presence. 

The lack of an entry threshold means that any union that intends to seek recognition from an employer will inevitably first seek an access agreement from which it can build momentum. While recognition is only granted by the CAC on the basis that the majority of the relevant bargaining unit want it – a matter generally determined by ballot – there is no such requirement when it comes to access and it will be rare for the CAC to reject an access request entirely. The views of the workforce are not a consideration – after all they can simply choose to ignore the union’s presence if they wish.  The union may be entitled to invite them to a meeting, and the employer may be obliged to facilitate that – but the employees can’t be required to attend if they are not interested. 

When the Employment Rights Bill was first introduced I was highly sceptical that the right of access would have any real impact. But the more I look at it, the more of a game-changer I think it might be. Rather than be neutral, the law will actively encourage the presence of trade unions in the workplace. Politically you may be inclined to view that as a either a negative or a positive thing, but it is undoubtedly a significant change.

When will it happen? The right of access is currently scheduled to come into force in October of this year – just six months from now. Before then the Government will need to introduce Regulations setting out the full details of the process and that may turn out to be quite a complex task. Can they get the Regulations drafted and approved before October? Perhaps – but if they do, that won’t give employers much time to prepare for the change.