Trade union right of access to the workplace: What employers need to know

The Code sets out practical guidance on how the statutory right of access should operate in practice, including how a union should make an access request and how an employer should respond as well as how the CAC will exercise its functions where negotiations are unsuccessful.  The Code will not impose legal obligations and failure to observe it will not give rise to legal liability for employers, but it could be taken into account in relevant proceedings by a court or tribunal or the CAC.

The Code sets out that there are now three general types of access that a trade union is able to conduct in a workplace: 

1.    Voluntary arrangements that are agreed between a trade union and an employer without the involvement of the statutory process. 

2.    Access arrangements that were agreed through negotiation between the trade union and the employer through the statutory process and about which the parties gave joint notification to the CAC. 

3.    Access arrangements that were initiated through the statutory process and then determined by the CAC following an unsuccessful negotiation between the trade union and the employer.

Only access arrangements in scenarios 2 and 3 above will be regarded as statutory access agreements.

The Code recommends that both trade unions and employers should maintain records of access requests and responses that can be used to demonstrate when they were made and received.  It sets out the timetable for access requests:

• The trade unions may submit an access request to an employer, including as much information as possible to help with subsequent negotiations.  They are encouraged to use the Code’s standardised template form for the request for access but are not required to do so.  
• Employers must respond within 15 working days from the day an access application is given, not when the request is passed on to the correct person or team within the employer.  Again, they are encouraged to use the Code’s response template.  The response period can be extended by agreement between the parties.
• If the employer agrees to the terms of the request, they should notify acceptance to the trade union and both parties should notify the CAC to record the agreement.
• Both parties have a negotiation period of 25 working days following the day on which the response notice is given to negotiate the terms of an access agreement and should approach negotiations in good faith.  The Code sets out provisions to continue beyond the 25-day period where negotiations are positive and for submitting the access agreement to the CAC.
• Parties who are unable to reach agreement have 55 working days from the date of the original access request to make an application to the CAC for a decision, with provision for the CAC to extend that to 70 days where it considers that it was not reasonably practicable for a party to apply for a determination within the time limit.

There are certain limitations to a statutory access request.  Access requests will not apply to employers whose overall headcount is fewer than 21 workers.  An access request must provide the employer with at least five working days’ notice before the first access takes place, no access agreement will last longer than two years and access will be refused if it would prejudice national security or the investigation or detection of offences.  

The Code also sets out the circumstances in which it would be reasonable for the CAC to refuse access including where the employer already recognises an independent trade union for that specific group of workers, but it does not by default mean an access request is rejected.  It will also be reasonable to refuse access where there is an ongoing statutory recognition process at the workplace covering those workers or where an employer has received at least one other access request that is still live.

Trade unions or employers can make complaints to the CAC if there is a breach of an access agreement or a third party has taken steps to prevent access.  The Code provides some guidance on how access agreements involving third parties operate e.g. where a security company employs security staff for a workplace managed by a different employer, the security company would be required to take reasonable steps to facilitate access.

Intervention follows a two-step process - an initial complaint, which if followed by a further breach, moves to penalty fines and possible cumulative fines.  The penalties for breaching an access agreement are significant, ranging from up to £75,000 for a first penalty to up to £500,000 for a third and subsequent breaches. 

The government has said that it will review the statutory framework to assess whether it is achieving the objective of enabling unions to engage with workers.  We can expect the review in the spring of 2027 looking at the effectiveness of the enforcement regime and whether the levels of fines are proportionate and sufficient to encourage compliance as well as the scope of access to workplaces, including the 21-worker threshold.

Where employers already recognise a trade union in a part of their workforce, we expect to see unions targeting those organisations to increase their membership.  Similarly, employers who do not recognise a union could find unions are seeking access with a view to achieving recognition.  With a limited time to respond to requests and little scope to refuse access outright, employers should be considering their employee engagement arrangements now and thinking about how they might want to respond to any access requests in advance of October 2026.

In particular, employers can:

• Review existing employee engagement strategies - a well-integrated approach to employee engagement will likely reduce the impact of the trade union right to access to the workplace, as if employees feel listened to by the employer, they might not seek union representation.  
• Plan what access could look like - give some thought to what level of access could be granted for each employee group and the parameters for access.  Consider:
  
  • Frequency of access - the Code suggests that weekly access would be a reasonable frequency level. This is a helpful benchmark. Employers should assess whether this frequency of access would be feasible.
  • Working patterns - consider how a trade union would communicate with employees on non-typical working patterns. The level of access given to this group should be broadly equivalent to that given for those working normal shift patterns. 
  • Existing visitor arrangements - trade unions will need to comply with existing arrangements, including any health and safety and security arrangements. These arrangements can therefore provide a helpful framework for defining certain elements of trade union access.
  • Privacy - employers are required to respect the privacy of access meetings. This may mean informing trade unions of any recording equipment in a physical space (e.g. CCTV) and even switching off such equipment for the meetings. 
  • Digital access – consider practically how digital access to the workforce would be permitted. This could take the form of employers cascading communications provided by the trade union to workers or permitting them access to electronic communication systems (e.g. Teams, Zoom, Outlook).  
  • Locations for access – the Code suggests that trade unions can submit a single request covering multiple workplaces.
  • Third-party premises – the Code suggests that where employees are working at locations owned and managed by third-parties, employers will be expected to take reasonable steps to facilitate access, which might include liaising with the third parties.
  • Map current physical and digital locations – have an accurate understanding of where trade unions may seek access is essential in planning how to respond to requests for access and in assessing what level of access may be feasible.
• Allocate responsibilities and training – employers should define now who in the business will be responsible for each stage of the process. The responsible individuals / groups should then receive training and guidance on their specific role.