Trade union draft code of practice: A guide for employers

The Employment Rights Act 2025 (ERA) will bring about some significant changes for employers.  One of the biggest changes could be the right for Trade Unions (TUs) to ask to come into your business to try to recruit members and organise collective bargaining. Access will not be for the purposes of organising industrial action. Although, this has not received as much publicity as some of the other big-ticket items in the ERA this could have a significant impact on many employers who might not have previously engaged with TUs.

Government has recently published a draft Code of Practice (CoP) about this access right, which open for consultation until 20th May 2026. Under the CoP employers with 21 or more employees could have to facilitate access to a TU on a weekly basis. It also sets out a process by which access requests should be managed, along with a set of forms to be used to submit and respond to an access request.

How Trade Union access requests work: Timescales, digital access and GDPR

Initially, it was thought that employers would have to respond to any request for access within 5 days. The good news is that government has increased time limits in the CoP as a result of feedback allowing up to 15 days for response. However, timescales are still tight, and we would advise that you to have a plan of action in place before you are contacted. Identify someone who will take ownership of any request, along with a plan of what access might look like for your organisation.  

Under the draft CoP access should be consistent with your current arrangements, so for example, if you regularly hold all staff meetings in your canteen, the TU should be able to do that too. You will need to ensure privacy and not ask those who attended what happened in meetings. Access can be digital as well as physical, with employers sending information from the TU on to employees and inviting employees to attend meetings on the company’s usual IT systems. TUs could also have direct access to contact employees but before you pass details of employees to any TU you will need to ensure that you have appropriate consent to comply with GDPR requirements.

Fines for non-compliance: What employers risk if access arrangements are breached

If you and the TU cannot reach an access agreement that works for both parties the TU can complain to the Central Arbitration Committee (CAC) who can impose an access arrangement. If either party breaches the access arrangement, then a complaint can be made to the CAC who might either alter the arrangements or order you to comply. A second breach of the arrangement within 12 months can attract a fine up to a maximum of £75,000, rising to £150,000 and then £500,000 for subsequent breaches. Interestingly, a further breach will not need another full enforcement process so those are likely to be automatically issued where a breach continues. If your agreement were to cover multiple workplaces then breaches in each location will count and fines could increase rapidly. The value of a fine would be assessed on the seriousness of the breach, how long it lasted, how many workers were affected along with the resources available to the employer.

Although the CoP is still in draft form now would be a good time to start thinking about how you will manage an access request.

Your Trade Union access compliance checklist

• Identify who will manage any access requests and ensure they are trained
• Consider who you would need to engage internally and set up a working part which might include, for example, IT and facilities teams
• Think about what sort of access you would prefer to provide as the response times are still tight
• Review your GDPR policies and procedures
• Consider how you manage your employee voice, and whether this could be more effectively aligned to your business strategy
• Look out for details of secondary implementing legislation which we will share when available

Andrew Whiteaker has extensive experience of working with Trade Unions so please get in touch for guidance in preparing for this change.

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