Employment Rights Bill: Consultations On Trade Union Reforms

Two consultations have been published on changes to trade union law set out in the Employment Rights Bill. These give a useful steer on the government's preferred options – although some key details remain unknown.

The two consultations set out more detail on proposals for union access rights and the new duty to inform workers about their right to join a union, and are open for responses until 18 December 2025. In the Implementation Roadmap published in July, the government indicated that both sets of changes would come into effect in October 2026.

Union access rights

The Employment Rights Bill will introduce a new right for trade unions to access workplaces for campaigning and organising purposes. The Bill outlines a complex new legal framework through which unions will be able to request voluntary access from employers, failing which they will then be able to apply to the CAC to order access arrangements. Access for these purposes can include physical access to premises and/or electronic access to workers through digital communications. However, as key details will be set out in secondary legislation and a statutory Code of Practice, up to now we've had limited information about what this new right will mean in practice for employers.

The consultation document provides welcome new information about the right of access, setting out the government's proposals on requesting and negotiating an access agreement, factors the CAC must take into account when determining whether access takes place, and enforcement.

How will the process work?

• The government has proposed a short, fixed timeline for negotiations over access arrangements before unions can apply to the CAC. Employers will have an initial period of 5 working days to respond to a union's request for access, after which they will then have a further 15 working days to negotiate access terms.
• However, unlike with the existing rules on statutory recognition, unions will then have a deadline of 25 working days after first submitting their initial request to make an application to the CAC. While having a hard deadline after which applications cannot be submitted will provide employers with certainty, it will also force unions to make more applications to the CAC to protect their position, rather than continuing to engage in voluntary negotiations for a longer period. It remains to be seen whether the CAC, which at present has a very small staff, will receive the resources to manage this significant new caseload.

What restrictions will there be on the new right of access?

• Small businesses with fewer than 21 employees in total will be exempt from access requests. This threshold is aligned with an equivalent exclusion under the existing statutory recognition framework.
• In contrast, already recognising a union won't automatically block another union from being able to secure access at the same workplace. The government has instead proposed that the presence of a recognised union would be one factor for the CAC to take into account when deciding whether it would be reasonable to refuse an access request. Leaving the door open to access requests where there is already union recognition in place may mean that we see increased competition among unions to recruit new members, with a destabilising effect on industrial relations. We anticipate that the Bridlington Principles (which regulate disputes between unions which are affiliated to the TUC) may need to be amended to account for this new dynamic.
• Similarly, the government has proposed that, when deciding whether to grant access, the CAC should take into account the principle that employers should not have "to allocate more resource than is required" to facilitate access arrangements. The consultation document cites the specific examples of having to construct new meeting places or implement new IT systems as disproportionate steps, which would be a reasonable basis for the CAC to refuse access. While this may be some comfort for employers, it suggests that businesses will still be required to incur some costs to facilitate access arrangements.
• The consultation also asks respondents for their views on further matters which the CAC should have to consider when deciding whether to grant access. Given the range of practical issues which access arrangements are likely to raise for businesses, employers are likely to push for additional grounds on which it would be reasonable for the CAC not to grant access, such as where it would be incompatible with national security, health and safety, confidentiality obligations or the need for continuity of service or production.

How will access arrangements work in practice?

• Access agreements will be required to have a fixed duration, with a term of no more than 2 years. Employers are likely to welcome this measure, which will stop them from being permanently bound by legal obligations to facilitate outdated access arrangements.
• The consultation document indicates that the government will publish a "model agreement", which the CAC will take into account when it decides whether to grant access to a union. Unlike in statutory recognition applications, where the CAC must automatically order the specified method of collective bargaining if the parties are unable to reach agreement, the CAC will not order these model terms if the parties cannot agree. However, the model terms are still likely to shape market practice, as unions will want to closely align requests to them to maximise their chances of being granted access.
• The government proposes that the model terms will specify that access should be granted on a weekly basis (whether physical, digital or both). This will be an onerous obligation for employers to facilitate for up to two years. For comparison, the existing Code of Practice on access during statutory recognition ballots only recommends access meetings should be held once every 10 days during the short period in the run-up to a ballot. Given limited resources, unions will struggle to provide sufficient staff to attend a large number of workplaces on a weekly basis.
• The model terms will require unions to give at least two working days' notice prior to each time they access a workplace. While a requirement to give notice is helpful, we anticipate that two working days may be insufficient time for many employers to make suitable arrangements.

How will access agreements be enforced?

• A party will be able to submit a complaint to the CAC about a breach of an access agreement. If the complaint is upheld, the CAC will have powers to order steps to be taken to ensure the agreement is complied with. If a complaint is brought about another breach within 12 months, the CAC will then be able to impose financial penalties.
• The government has proposed a two-stage system of penalties, with a standard cap of £75,000 (in line with the maximum penalty for breach of information and consultation rules) and an increased cap of £150,000 for repeated breaches.
• In deciding the size of a penalty, the CAC will have to take into account a number of factors, including the gravity, duration and reasons for the breach, the number of workers affected, the number of workers employed by the business, and any previous history of non-compliance.

What do we still not know?

While the consultation provides useful insight into the Government's likely approach to the forthcoming regulations on the right of access, key details remain unknown. Beyond the fact that the model terms will provide for weekly access on two working days' notice, we have very limited information about what the CAC will consider to be reasonable access in practice. For example, in relation to physical access, it's unclear how many union officials will be able to enter a workplace or for how long, whether management will be able to attend their meetings onsite, or whether staff will be entitled to paid time off from their usual duties to meet with the union. Similarly, it remains unclear what digital access will mean – in particular, will it be sufficient for an employer to send an email on behalf of the union to its staff, or will it be required to provide access to its electronic systems or to disclose employees' contact details to enable the union to contact them directly?

We anticipate that the statutory Code of Practice on the new right of access will provide much-needed practical guidance on how employers will be required to comply with this new obligation. The government intends to run another consultation on the Code of Practice in spring 2026.

Duty to inform workers of right to join a union

The Bill will create an obligation on employers to provide new workers with a written statement that they have a right to join a union at the same time as their statement of employment particulars. It leaves it up to the government to prescribe in future regulations the content and format of the statement, and any additional times it must also be provided.

The government is proposing that the statement should include the following information:

• A brief, neutral overview of the functions of a trade union
• A summary of the statutory rights in relation to union membership
• A list of all trade unions that the employer recognises (if any)
• A signpost to a GOV.UK website with a list of trade unions

The government's preference is for it to produce a single, standard written statement, to which employers would only need to add any further information that is specific to their organisation. This is a sensible suggestion, which will remove the administrative burden that would otherwise fall on employers and reduce the risk of challenges over compliance with this duty (particularly noting the relative complexity of the information that the statement may be required to cover). It will be vital for the government to ensure the standard written statement remains a neutral, factual document, particularly given that the individual right to choose not to join a trade union is protected under the European Convention on Human Rights.

This new duty will impose an additional compliance burden on all employers, including very small businesses who will not benefit from an exemption. It will be enforced in the same way as the existing requirement to provide a statement of employment particulars - so workers won't be able to bring a standalone claim in the Employment Tribunal, but if the worker wins another claim, breach may result in an award of between two and four weeks' (capped) pay.

It is unclear, however, whether this new requirement will achieve the Government's stated aim of reversing the long-term decline of trade union membership in the UK, which is likely more a reflection of unions' reduced relevance to the modern workplace than a lack of awareness of their existence among workers.

The full consultation documents can be found here and here. Lewis Silkin will be submitting a response to both consultations, so please do get in touch with us if you'd like to share your views.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.