The Employment Rights Act 2025 (ERA 25) contains significant changes to trade union law that will affect not just employers with recognised unions, but all employers. The government has recently responded to 4 consultations on various aspects of these changes, the main implications of which are summarised below.
Consultation 1: Trade union access – due to take effect on 30 October 2026
One of the most significant changes in the ERA 25 is the right for trade unions to request access to workplaces. This is a major change for employers, as trade unions have never had the right to interact with employees in this way before. This new right will allow trade unions to request access physically and/or digitally to workplaces, in order to represent, support, recruit and organise workers and facilitate collective bargaining. The access purposes do not include organising industrial action.
On 6 July 2026 the government published its response to the consultation on a draft statutory Code of Practice on the new right for trade unions to access workplaces. The draft Code of Practice was the subject of a consultation which ran from 8 April to 20 May 2026. The government has made changes to the Code taking into account the result of this consultation. Basic details of the new right to access are set out here in our article, which was written before these amendments were published. Some key points to note on the amendments to the Code are set out below:
Applying for access:
- Trade unions may request further information from an employer ahead of applying for access to help inform a request for access that better reflects the specifics of the workplace in question. Employers are expected to engage constructively with such requests and share information that allows the trade union to make an accurate request for access.
- The trade union should direct their request to an email address provided by the employer, which the employer should make every effort to provide.
- It is recommended that requests for access should be completed using the standardised form, although it is not a legal obligation to do so. The standardised forms have been simplified.
- Minor accidental clerical or administrative errors in a trade union’s application should not be regarded as a reason for an employer to reject an application. Employers and trade unions should work together to correct any errors.
Responding to a request for access:
- Employers need to respond to access requests within 15 working days. This period of 15 days will run from when the access request is received, not when it is passed to the correct person or team.
- If rejecting a request, the employer must provide details of which elements of the request for access they are specifically rejecting and the reasons for doing so.
- If the employer assesses that a request for access contains terms that will unreasonably interfere with business or will require unreasonable steps to facilitate access, then the employer is expected to, in their access response, to explain how they believe this is the case.
When and where should access take place:
- Examples are given for various types of workplace where access should take place. For example, in offices, access should take place in meeting rooms that are located near or adjacent to work areas.
- Workers who attend a meeting organised by the trade union via an access arrangement during work time, should be paid, in full, for the duration of their absence from work. The Code does not specify how long this absence can be.
More complicated scenarios:
- The Code has been updated to include more complicated scenarios such as when the employer does not have direct control of the premises on which the worker works – e.g. a shopping centre. In these circumstances, the employer should seek to agree access with the third-party controller of the premises. Third parties can be subject to Central Arbitration Committee (the CAC) action and fines.
- The Code has been updated to include accounting for non-typical working patterns such as homeworkers or those on family or sick leave. The Code says that employers should be receptive to a trade union’s suggestions for securing reasonable access to such “non-typical workers”.
- The Code sets out more detail now on digital access and how this can be achieved – for example the employer could cascade trade union communications to their workers as requested by the trade union (they should copy the trade union into the email so that the trade union has certainty that the message has been sent).
Complaints and penalties:
- Complaints can be made by either the trade union or the employer on the grounds that the other party has breached the terms of the access agreement, or a third party has taken steps to prevent access. Complaints to the CAC must be made no more than three months after the matter complained of is alleged to have occurred.
- Unions can submit separate complaints in respect of consecutive breaches at one workplace or concurrent breaches at multiple workplaces. Multiple fines can be given in these circumstances.
- Details of how the CAC can decide the value of the penalty are set out in more detail – for example, the CAC will consider the gravity of the breach, its duration, the reasons for it, the size and resources of the liable party and previous failures. The Code says that the deliberate obstruction of access by an employer is a very serious breach for which the CAC could award the maximum level of fine of £500,000.
Along with the amendments to the Code, two sets of regulations have been laid before Parliament, one dealing with the procedure for the right of access and the other with the information required for each step. These will come into force on 30 October 2026.
Actions for employers
Employers should take steps now to prepare for these changes. A first step could be deciding who is going to deal with access requests and which email address will be shared with any union requesting access. Setting up a procedure for responding to requests within the tight 15 working day window would also be sensible, as would starting to think about what sort of access would be possible or preferable.
Employers will also want to think about which policies union officials should be asked to comply with – for example, a bullying and harassment policy. The forthcoming duty to take all reasonable steps to prevent sexual harassment in the workplace applies to both harassment by employees and by third parties. Employers will also be subject to a new law prohibiting third party harassment in relation to all protected characteristics. Having union staff on site gives rise to an additional risk that should be taken into account in risk assessments and action plans to prevent sexual harassment.
Consultation 2: Unfair practices – during recognition/ derecognition – due to take effect in October 2026
The ERA 25 provides for improved access arrangements for unions during the statutory trade union recognition and derecognition processes and also for a strengthened prohibition on unfair practices to improperly influence the outcome of recognition or derecognition. The government has responded to the consultation on a revised Code of Practice on this subject. The amended Code makes it clear that management action during a recognition or derecognition process is unfair practice if it is intended to disrupt the process. Normal management action unconnected to the recognition process will not constitute unfair practices. This would include actions such as disciplinary procedures conducted in accordance with the Acas Code and legitimate shift pattern changes. The revised Code is expected to come into force in October 2026.
Consultation 3: Electronic balloting – currently due in August 2026
Currently, statutory trade union ballots must be held by post and ballots for statutory recognition and derecognition of trade unions must be carried out using postal or workplace balloting. The government has stated its intention to introduce three types of voting:
- electronic balloting (fully digital);
- hybrid balloting (voting materials sent by post, postal or electronic vote allowed); and
- workplace balloting for industrial action ballots only (physical ballot box and paper).
Consultation on a draft Code of Practice took place between November 2025 and January 2026. The government has now published its response to this consultation along with an amended Code and legislation enabling electronic balloting to take place. Electronic and hybrid voting methods will be introduced for industrial action ballots, political fund/resolution ballots, union election ballots and union merger ballots. Workplace voting will also be introduced for industrial action ballots. In 2027, it is expected that electronic and hybrid voting will be extended to statutory recognition and derecognition ballots.
Consultation 4: Industrial action detriment – due to take effect on 30 October 2026
The ERA 25 gives additional protection to workers who take part in industrial action, expanding the current protection against dismissal to cover all forms of detriment by their employer, where the sole or main purpose was to prevent or deter the worker from taking protected industrial action or penalising the worker for doing so. The government has published its response to consultation on this topic and has published drafted regulations. The draft regulations confirm that a proportionate deduction from pay where a worker takes industrial action does not amount to a detriment.
Updated Acas Code of Practice on time off for trade union duties and activities
Acas has updated its Code on time off for trade union duties and activities taking into account ERA 25 changes. In particular:
- Trade union officials and learning representatives are entitled to take paid time off during their working hours for the purpose of carrying out trade union duties. The ERA 25 strengthens this right making it the employer’s responsibility on any tribunal claim to prove that the time off requested was not reasonable.
- The ERA 2025 also expands this giving such employees the right, on request, to such accommodation and other facilities for carrying out their duties as are reasonable.
- Union equality representatives do not currently have a right to time off or facilities. The ERA 25 introduces a new right to time off and facilities for them to carry out specified equality-related purposes and related training.
The amended Acas Code gives practical guidance to employers to navigate these issues, including giving examples of the relevant factors to consider if time off is reasonable. This amended Code is expected to come into force alongside the changes to the statutory framework in October 2026.
