Remziye Ozcan: Hello and welcome to Mills & Reeve’s Employment law podcast. I'm Remziye Ozcan. I am a principal associate in our employment team and I'm joined today by my colleague Kate Watkins, a partner in our team. Hi Kate.
Kate Watkins: Hi, Remziye, it's good to be here.
Remziye Ozcan: Thank you. So Kate, today we're looking at the package of trade union reforms which are currently expected to take effect from 30 October this year under the Employment Rights Act 2025 and we're going to focus on the new trade union right of access to workplaces, and it's essentially a requirement to tell workers about their right to join a union. Then also looking at what employers should be doing to prepare for all of this and the packages that are to come.
But before we get into the detail of it all, I wondered if it's worth acknowledging the spirit of the reforms to begin with really. So they are intended to increase trade union involvement in the workplace and obviously increase awareness of that, but it is to encourage greater collaboration between employers, workers and unions. And I suppose whatever an employer's existing approach is to trade union relations, the reforms, I hope you'll agree, they represent a significant change in the practical landscape that we're operating in. But why do you think that the changes matter so much now from your perspective?
Kate Watkins: Yeah, I do agree. So the important point is that the new rights of access don't sit in isolation, so they form part of a much broader package of reforms. It will make it considerably easier for a union to establish a presence in a workplace where they never previously had one.
Remziye Ozcan: That's really interesting. So I suppose it seems particularly significant for employers that have historically not really had much direct contact with unions. Do you think that's fair to say?
Kate Watkins: Yeah, I think it is. I think until now, and any employer without a recognised union already in place will have been able to keep unions at arm's length, I suppose, and particularly so where that union may not have an established membership within that employer's workplace. So this new right of access removes that practical barrier and it will give unions a route into the workplace so that they can communicate with workers, potentially build support and obviously it will then be easier to obtain that membership. And ironically, the employers who I think will be most affected will be those with the least experience of dealing with unions. So they may not have things like existing protocols, any internal industrial relations team or even experience and therefore probably very few managers who are familiar with handling both the union request or sort of the union landscape.
Remziye Ozcan: Yeah, exactly. And based on what you're saying, it sounds like the immediate request may be about access as such, but actually employers need to look at this much wider and understand the wider strategic context that it's all operating in. Should we look a little bit closely at what the new right actually involves?
Kate Watkins: That's fine. So from 30 October, independent trade unions will have a statutory route to request access to a workplace. So this is not limited to employers that already recognise the union, nor does the union requesting that access have to show that they've already got members in situ within that workplace. So it will be really easy for unions to effectively approach an employer and make that request to have access. The framework can apply to employers with 21 or more workers and the access can be physical, digital or a combination of both, so it will be relatively easy.
Remziye Ozcan: Just to clarify for our listeners, when we say digital access, we're not necessarily just talking about giving the unions direct access to employers' IT systems, are we?
Kate Watkins: No, no, no. So digital access will involve the employer facilitating probably an online meeting, something via Teams or whatever the platform it might be, which the union can then join, or circulating a communication on behalf of the union. So it will be sort of that virtual arrangement. The precise arrangement will depend on the workplace, the workforce and the terms that are agreed between the union and the employer. But ultimately, if they can't reach agreement, the central arbitration committee or the CAC can determine whether that access should be granted and specifically on what terms it should be granted.
Remziye Ozcan: That's really useful because importantly, I guess it's worth emphasising that the starting point is under the framework that actually access will be granted. So that's the starting point that we're all coming to and employers therefore need to think really carefully, don't they, about refusing, if at all, but should we look at what the access can be used for? What precisely is the access actually for in real life?
Kate Watkins: Yeah, so the permitted purposes include meeting, supporting, representing, recruiting or organising workers, whether or not those workers are already union members. And it can also be used to facilitate collective bargaining. So one important boundary is that it does not extend the right to the unions to organise industrial action, so it’s not a granted right of access to come in and be disruptive or organise industrial action, but it will be that sort of wider remit that a union will adopt in terms of supporting, representing, recruiting people to the union and effectively raising their profile within that workforce.
Remziye Ozcan: Yeah, no, completely and I guess it's worth again emphasising that access is not in itself the same as formal recognition, is it?
Kate Watkins: No, that's right. So access to a workplace and recognition of that employer formally are two legally distinct processes. But as I say, I think access is perhaps best understood as a potential first step towards that recognition rather than necessarily an end in itself. It does give the union an opportunity, as I say, to communicate with workers, explain what the union can offer, recruit members and effectively build support for both recognition and collective bargaining. So employers should avoid looking at an early access request simply as an operational question about “can we use rooms, can we have emails, can we have meetings?” It probably is going to form part of the union's longer term recognition strategy.
Remziye Ozcan: No, exactly. So it doesn't mean that every access request will lead to recognition, but as you say, they need to look at it in the wider context of their employee relations strategy. And I guess another important point is speed. I know that employers have to act relatively quickly. They'll have little time really to work out their position once a request arrives.
Kate Watkins: Yeah, that's right. So an employer will generally have 15 days to respond to a union's request for access. It will need to say whether it accepts the request in totality, whether it accepts the request in part or whether it declines it and naturally would need to give reasons if that is the case.
The employer can also indicate whether it's willing to negotiate, so it could be that they accept it in part but want to negotiate the terms upon which that access is granted. The parties then have 25 days to try and agree the terms of that access arrangement, but ultimately if they can't agree, the CAC can step in. It can be referred to them as sort of a separate central arbitration body who will determine the access arrangement for the parties.
Remziye Ozcan: So I think based on all of that, it's safe to say that it's not something that can just sit in a general HR inbox and wait a couple of weeks. It really does need actioning, you know, relatively quickly and we need to know who's really on the team to action to begin with.
Kate Watkins: Yeah, I completely agree, and the deadline will mean that employers need to act fast, but also need that clear escalation route and exactly what you said, they need to know internally who is dealing with those access requests and do they have the sufficient knowledge and authority to formulate that response and indeed conduct negotiations if that's the route they want to go down.
It doesn't mean that an employer has to agree to every aspect of the request. As I say, there may be some legitimate issues to discuss around sort of timing, frequency, location, operational disruption and also security depending on the employer that has been approached and what they do. But I would encourage employers to approach the request constructively, they should position themselves as being reasonable, evidence-based and directed towards finding a workable solution rather than just being a blanket refusal approach.
Remziye Ozcan: Yeah, no, I agree with all of that. And it's probably worth maybe digging a bit deeper and looking at maybe some practical differences between sectors because the legal framework is broadly applicable across the board. But what reasonable access actually looks like will really depend on the organisation itself and the sector that they operate in. So Kate, I wondered whether we draw on an example and maybe look at what might need to be considered in the retail sector, for example.
Kate Watkins: Yeah, that's a good one to pick. It's a good example because there are a large number of sometimes relatively small or medium sized sites. Obviously, if you think of retail where you have a physical store across the country and then you've got your head office, so a number of separate sites, all of those will have different and often extended opening hours, different staff, different shift arrangements, so just builds a very different picture of where those access arrangements might differ. So physical access may need to take account of that, but also things like peak trading periods, be that the weekend or seasonal, customer facing areas and whether there's genuinely a private space in a store where workers could actually meet union officials and have those confidential conversations. So an arrangement that works at a head office may not be suitable across a business like retail, where they've got a network of stores or even a network of offices if we're talking about another sector. There's also the practical question, I suppose, for many sectors, not just retail, about how you access sort of night workers, weekend workers or people on short, variable term time only shifts, that kind of thing. It's very much not a one-size-fits-all approach.
Remziye Ozcan: Yeah, completely. And just building on the examples that you gave, if we look at the healthcare sector, for example, they might have vulnerable service users that they need to take into account, continuity of care, or you might have a professional services firm, for example, that's particularly concerned about their confidential and commercially sensitive information and material. So it is a critical issue to think about, and I suppose even for largely remote workforces, digital access may also be a central issue. So there's a lot to think about, isn't there?
Kate Watkins: Yeah, there is. And I think that now's the time, you know, 30 October is not that long away, but it still gives time for employers to think through those factors in advance. So thinking about, you know, if this happens, what suitable rooms might we have for those meetings to take place? What would appropriate timing of those meetings and access look like for us? What workable digital channels could we have to make the access arrangement a little bit easier for us if that's what they want to do. Access during breaks or towards the end of the day might be more practical in some organisations, but not necessarily all of them. But the aim should be at reaching a considered position before that request lands. As I say, we've only got 15 days to effectively reply to it or then negotiate. So making that considered decision before the request lands and knowing your strategy rather than making decisions or concessions under the pressure of that negotiation timetable.
Remziye Ozcan: Yeah, no, exactly. And again, just to summarise, it is becoming clearer and clearer, isn't it, that access raises issues beyond just industrial relations here in this framework.
Kate Watkins: Yeah, completely. And I think we both operate in sectors where this will be really relevant. But obviously, if a union representative is entering a workplace, the employer, our clients will need to consider their health and safety obligations towards visitors. You've already mentioned thinking about confidentiality and sensitive information. Also things like data protection, information security, access to business sensitive areas if it is a manufacturing environment or a health and safety part of a building.
I suppose in some respect there could be conduct issues to address too. For example, employers thinking about how their policies deal with harassment and appropriate workplace behaviour when you've got visiting union representatives and third parties. So these issues can all be addressed through the access agreement that we said at the start and supported by suitable internal policies. But those shouldn't be barriers to resisting access altogether. They should be the assessment that employers are undertaking now to know what their answer to those questions and therefore their responses to any access requests will need to look like.
Remziye Ozcan: Yeah, exactly. I guess the distinction is quite important because the objective isn't to create unnecessary barriers as such, it's to ensure that access takes place appropriately, safely and in a way that's fair and obviously respectful to both workers' rights. And obviously, an employer will have their own legitimate sort of operational and organisational concerns as well.
So there are also meaningful consequences if an employer does not comply with an access agreement.
Kate Watkins: Yeah, so critical question, does all of this have any teeth, I guess? So yeah, a dispute about compliance can be referred again to the CAC, this independent arbitration committee, and they can require an employer to take steps to secure compliance. For repeated breaches, those financial penalties can escalate significantly, potentially reaching 500,000 so half a million for each breach. That's obviously going to depend on the severity of the breach and the, I suppose, ignorance of rectifying those. But the CAC can also publish details of that penalty, including the employer's name. So there's the financial, but also the reputational exposure. You know, that can have a knock on impact on sort of retention, recruitment, all of those kind of things that employers will have worked hard in trying to address over recent years. So it reinforces the importance of having that workable agreement and ensuring now that managers understand what is needed and what your strategic approach is going to be to those requests.
Remziye Ozcan: Yeah, no, exactly. So that might bring us to the wider strategic question that this makes us all consider.
Kate Watkins: Yeah, definitely. And you and I have had conversations about this at length and we're of the view that this is not about discouraging lawful union membership or union activity. Workers are free to decide whether they wish to engage with or join a union. It's about understanding workforce sentiment and asking whether workers already have credible ways to raise concerns, influence decisions and feel that their views are heard. So it's giving more of a voice to that platform and making sure you've got those covered and accessible to employees rather than, as we say, trying to discourage that lawful union activity or membership.
Remziye Ozcan: Definitely. And employers, they might have, you know, things like staff forums, employee councils, surveys and other types of consultation arrangements in their workplaces. But I guess the critical question is not whether those structures exist on paper. And as with anything, you know, it's whether people know about them, they trust them. Can they see themselves raising issues through these forums that will actually lead to meaningful outcomes? So there's quite a lot to think about on that front.
Kate Watkins: Yeah, definitely. And I think if those arrangements that you've mentioned are weak or absent, employers have the opportunity to strengthen them now and also probably understand how they may sit in tandem with a rightful request for unions to have more access or recognition.
Remziye Ozcan: Yeah, exactly. So to finish, what do you think, Kate, employers should be prioritising between now and 30 October, given everything that we've discussed?
Kate Watkins: Yeah, I think I would first be auditing your workers' voice mechanisms. So understand where your workforce sit, what their sentiment is towards having that recognition, be that through employee forums that you've mentioned or indeed union access, union recognition. Assess whether any existing engagement or representation arrangements have genuine credibility.
I think absolutely develop your trade union access strategy because regardless of point one that could still arise. Unions could still be asking for access to your workforce regardless of you having the best employee forum in place.
Assessing your practical risks, so consider the things that we've said around health and safety, confidentiality, information security, third party conduct, and understand how that will operate across different sites of yours and different working patterns. Training the team, making sure that those where these requests may land with understand what they are and know how quickly they need to respond and what they need to respond with. So allocating that responsibility, within the teams to those with enough knowledge and authority to respond and negotiate appropriately. And then review your onboarding, your contracts of employment. So this new statement around the right to join a union can be incorporated pretty easily and pretty readily once those final arrangements are confirmed.
Remziye Ozcan: Yeah, that all sounds super practical. And one thing I'd add is maybe an added layer, which is ensuring line managers and HR actually understand the purpose and the tone of the reforms, because that's really important to set the scene, I suppose, and the foundation to it all. So essentially, you know, an access request shouldn't be triggering a hostile reaction to begin with, it's probably quite important to understand the spirit of the reforms and remain calm, consistent, constructive, as you said earlier, but also, of course, you're still protecting the employer's legitimate business and operational interests at the same time.
Kate Watkins: Yeah, completely agree. I think those employers best placed to navigate the new regime will be those that understand their workforce, have thought through those practical issues and can clearly explain the reasons for the arrangements that they're either rejecting or proposing alternatives to. But the wording you used around being calm, consistent and constructive, are going to be really key to having that collaborative environment for this trade union access going forward.
Remziye Ozcan: Brilliant. Thank you so much, Kate. So the key takeaway, I guess, from us both is don't wait until the first access request comes through. But Kate, thank you so much for joining me on today's podcast.
Kate Watkins: No problem. Thank you. And yeah, thanks everyone for listening. I completely agree. I think as always, continue to monitor the final regulations and guidance as the October implementation date approaches, but completely agree with you, Remziye. Don't wait for that first access request to drop. It's a short time period that we need to reply in.
We have produced a practical employer guide to those upcoming trade union reforms, including some of these practical tips and what an access arrangement and agreement might look like. So if you'd like a copy, then, yeah, let either Remziye or myself or your usual Mills & Reeve contact know and we can discuss that further with you.