In the latest Coffee Break Briefing, Employment Associate Chris Dobbs outlines the key trade union reforms introduced by the Employment Rights Act and explains how the changes could affect both unionised and non-unionised employers.
Please note: This article has been updated since it was originally published to reflect recent developments in relation to the proposed trade union reforms.
The reforms introduce important changes around trade union access, recognition, industrial action and the information employers must provide to workers. For employers, this means understanding how to respond lawfully and effectively to trade union activity, as well as planning ahead for the changes.
You can watch the recording of Chris' webinar using the link below.
What rights do employees have?
Workers and employees already have a number of important rights in relation to trade unions.
These include the right to join a trade union, participate in trade union activity and, in certain circumstances, be accompanied to meetings by a trade union representative.
Employees are also protected from dismissal or detriment because of their trade union membership or activity.
Trade union representatives may also have rights to reasonable paid time off, access to appropriate facilities and protection from detriment when carrying out their role.
For employers, this means it is important that managers understand these protections and respond appropriately where trade union involvement arises.
What is the new right of access?
One of the key reforms is the introduction of a new statutory mechanism allowing trade unions to seek access to workplaces.
This access may be requested for a number of purposes, including:
- Recruitment
- Organising
- Representation
- Communication with workers
- Collective bargaining
The right of access will not extend to activity for the purposes of organising industrial action.
Importantly, access does not only mean physical access to the workplace. It can also include digital access and employer-facilitated communications.
How will trade union recognition become easier?
The reforms are also designed to make it easier for trade unions to obtain statutory recognition.
This includes a reduced threshold for making an application for recognition, meaning that a union may need fewer members before it can begin the process.
The reforms reduce some of the thresholds and evidential requirements involved in the statutory recognition process, making it easier for unions to pursue recognition applications.
For employers, particularly those that are not currently unionised, this could mean that recognition applications become more common.
How is industrial action changing?
There are also a number of changes relating to industrial action.
The reforms include electronic balloting and the removal of a number of restrictions introduced under previous legislation.
These reforms are intended to simplify parts of the process for trade unions when organising industrial action.
What is the new duty on employers?
From 1 January 2027, employers will be required to provide workers with information about their right to join a trade union.
Importantly, this duty will apply even where the employer does not currently recognise a trade union or have an established union presence within the business.
Non-unionised employers therefore need to be aware that the reforms are relevant to them too.
How will the new access regime work?
At present, there is no general legal right allowing a trade union representative to enter private business premises without the employer’s permission.
From 1 January 2027, unions will be able to seek formal access arrangements with employers. Where an agreement cannot be reached, the matter may ultimately be determined by the Central Arbitration Committee, or CAC.
What could ‘access’ look like in practice?
Access does not necessarily mean giving a trade union representative unrestricted access to the workplace.
Depending on the circumstances, arrangements could include:
- Access to a meeting room
- Drop-in sessions for employees
- Access during employee break times
- Employer-facilitated digital communications
- Virtual meetings with employees
The exact arrangements are likely to depend on the workplace and the nature of the request.
What should you do if a trade union contacts your business?
If a trade union representative arrives at your workplace or contacts the business asking to speak to employees, it is important not to react too quickly. Refusing access immediately or asking them to leave without first understanding the situation could create unnecessary risk.
Instead, employers should take a calm and consistent approach. Start by confirming who the individual is and whether they are genuinely representing a trade union. You should also establish the purpose of their visit or request, what they are hoping to achieve and whether any existing arrangements are already in place.
It is also sensible to nominate a designated HR or senior management contact to handle trade union approaches and escalate matters where appropriate.
It is also important to keep a clear record of the interaction, including when the request was made, who was involved, what was requested and how the business responded. Having a consistent process in place will help ensure that trade union contact is handled appropriately and lawfully.
What should happen after the union has left?
Employers should also be careful about how they communicate with the wider workforce following contact from a trade union.
It is important not to inflame the situation or make comments which could be interpreted as discouraging trade union involvement.
Trade unions may actively look for conduct which could amount to unfair treatment or obstruction.
Employers should also be aware that there may already be union members or contacts within the organisation, even where the business does not consider itself to be unionised.
How can employers prepare for the changes?
One of the most useful steps employers can take now is to audit their current position.
This should include considering questions such as:
- Do we know whether trade union membership may already exist within the business without directly asking employees about their membership?
- Do managers know how to respond if a trade union makes contact?
- Do we have a clear visitor protocol?
- Are there existing employee relations issues that we could begin managing now?
Trade union membership is special category personal data, so employers should also be particularly careful about asking employees directly about their membership or recording this information without an appropriate basis.
What should manager training cover?
Managers are often the first people to become aware of trade union activity, so appropriate training will be increasingly important.
Training should help managers understand what amounts to protected trade union activity and how they should respond.
It should also cover internal response and escalation procedures, as well as the risks associated with communications about trade union involvement.
A poorly handled conversation can create unnecessary risk for the business, even where the original issue was relatively straightforward.
What common mistakes should employers avoid?
There are several common mistakes employers should take care to avoid when trade union activity arises.
Employers should not suggest that union membership is a problem, or imply that an employee’s involvement with a union is causing difficulties for the business. They should also avoid asking employees directly whether they are union members.
Managers should be particularly careful not to overreact when union involvement becomes apparent. Comments such as “who has been talking to them?” or suggestions that employees may face consequences for involving a trade union can create significant legal and employee relations risks.
The best approach is to make sure managers understand the relevant protections, know when to escalate concerns and respond to trade union activity in a calm, consistent and lawful way.
What should employers be doing now?
The changes to trade union law are likely to have an impact well beyond businesses which already recognise a trade union.
With new access rights, a simpler recognition environment and new obligations on employers, non-unionised businesses also need to understand how the law is changing.
Reviewing current procedures, training managers and establishing clear protocols for dealing with trade union approaches can help employers respond confidently and appropriately when the new rules come into force.
Employment law experts
If you have any questions regarding this webinar, you can get in touch with a member of the team on 01202 499255 or by filling in the form at the top of the page. We offer all new clients a free initial chat.
In case you missed this month’s briefing you can sign up to our mailing list here to hear about future Coffee Break Briefings and employment updates.
Chris will also be hosting an in-person seminar on Wednesday 14 October, where he will cover fair dismissals, guidance around the new reduced qualifying period, further trade union changes and other Employment Rights Act updates.
Our next Coffee Break Briefing will take place on Wednesday 7 October, when Employment Solicitor Justine Mears will discuss protected characteristics.
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