Bitesize ERA: Preparing for the new trade union access rights to the workplace

Amy (00:03)

Hello and welcome to the latest episode of Bitesize ERA. I'm Amy Stokes.

Emma (00:09)

And I'm Emma Butterworth.

Amy (00:12)

And we are employment solicitors here at TLT.

So today we're talking about the new statutory right of trade union access, which is due to come into force on 30 October this year. This is something that employers should be thinking about now because it introduces a new standalone statutory right for trade unions to seek access to workplaces.

Importantly, it isn't just about employers that already recognise a trade union. So, an employer that's never recognised a union or perhaps has never had any real engagement with a trade union could still receive one of these statutory access requests.

So, this was part of the Employment Rights Act, which received Royal Assent in December last year. But the code of practice and model terms were released in July this year. And they're really important because they give employers and unions much more detail about how the new right is expected to work in practice.

The basic idea is that an independent trade union can seek access to workers for a number of purposes, and those purposes include meeting, supporting, representing, recruiting, or organising workers, and facilitating collective bargaining.

There are some limits, however, and the key one to be aware of is that this is not a right to access a workplace in order to organise industrial action. So that might be strike action or action short of a strike – and be aware that both recognised and unrecognised unions can ballot for industrial action – but it doesn't extend to that.

So, this is a significant change. It's a huge change in the relationship between employers and trade unions. And I think that one of the biggest misconceptions that Emma and I certainly have heard is that access simply means that a union representative can just turn up at the workplace and walk in. There is a clear process that Emma's going to take you through shortly. But the starting point to be aware of is that this regime applies to employers with 21 or more workers. I don't know why it's twenty-one, but it is.

And that threshold is considered across the whole workforce, not site by site. So, be aware that you need to look at the organisation as a whole. And as I mentioned, the request itself has to come from an independent trade union. And one of the important points is that the union doesn't have to have an established presence in the business before making the request. And so there's no requirement to demonstrate a particular level of membership or support within the workforce, which there is where there is a recognition request. It can be, it can be any union without that kind of support already.

So, what can they ask for? The purposes are fairly broad. I mentioned that they are quite clear and prescriptive about what they're entitled to access for. But the key thing is that there's two types of access and there can be digital access to the workplace or physical access or more likely they can make a request for a combination of the two.

That's going to be quite important for employers with remote workers, with multiple sites, or large numbers of employees who aren't based in a traditional office. So, when we say digital and physical access, physical access is what you would expect really. That is accessing the premises in order to meet and to operate out of meeting rooms and things like that as well. And then the digital access is a little bit more interesting. So, it's not a request to be provided with the contact details of all employees so that they can contact them. There are data protection points there. What it is, is that employers may be required to facilitate or cascade email communication or intranet messages or something like that. And also, arrange online meetings, so your Teams meetings, Zoom meetings, all that kind of stuff as well.

What we expect, however, is that access is going to look like a request for digital access in order to cascade a meeting. The meeting could be a physical and a digital meeting – but being really aware through that that there are very clear indications within the code that employers are not to monitor attendance of those meetings, so not looking at recording them or anything like that. And there shouldn't be any tracking of engagement with union communications there as well.

This is a massive change, particularly for employers who don't really work with unions already. And I know we know that there's quite a lot of questions that we're getting in relation to that. But the process for this is really important. So, Emma, can you take us through what happens on a stage-by-stage basis when one of these requests lands?

Emma (05:11)

Yes, thanks Amy. I think the first thing to understand here is that there is quite a prescriptive statutory timetable for dealing with these requests, and that starts the moment the request is received by the employer.

Now that doesn't mean it's received by the right person or anyone who recognises what it actually is. So, this is really, really important, as I say, because key milestones run from the date of that receipt and they are working days, not calendar days.

So, the first milestone is 15 working days from receipt to respond to it. Now it might be on receipt you agree it, however, it might be that you want to refuse it or you want to set out some elements that you do agree and some elements that you're going to refuse. So, if there's any disagreement on the terms of the access agreement, then the parties are allowed a further 25 working days to negotiate, which takes us to what the code refers to as day 40.

Now, if the parties, so the employer and the union, can't agree on the terms within that period of time, there is a 55 working day window from the date of receipt of the access request for either party to contact the CAC about this. Now there are really limited circumstances where the CAC might extend that timeframe to 70 working days, but that's only where it wasn't reasonably practicable to apply in time.

So, I think the practical takeaway from this first step when the request lands is that employers should be thinking about having a designated inbox or contact or a point of contact for where requests should be sent. And some employers we've been talking to are even thinking about adding a particular email address on their website to direct such requests, which is a really good idea. You should also think about, once the request is received, where that's escalated to and make sure the right people are going to be available to have a look at this.

And of course, as Amy mentioned, there are specific rules around third party workplaces. So, if you've got workers on third party premises, make sure that you understand who the relevant site contacts are there because 15 working days really can disappear very quickly.

Amy (07:29)

Yeah, we're on really tight timescales there, aren't we, Emma? If the CAC did get involved, how would they look at this? What would they consider in terms of whether to grant or refuse the access request?

Emma (07:45)

Well, that's a really good question because I think what everybody needs to be aware of is there is a presumption that access will be granted. The code really recommends, insofar as it's going to be possible to do so, that you agree on a voluntary basis the access agreement. Now that's going to be quicker, it's going to allow more flexibility, but it's also going to give both the union and the employer more control over the terms of access.

Of course, if there is already a satisfactory voluntary agreement in place, then the party should really continue with that. But, and this is a really important caveat, the union doesn't have to try the voluntary route first. They can go straight in making a statutory request for access. So having an existing voluntary agreement doesn't always give complete protection against receiving a statutory access request.

So, as you say, if the parties can't reach agreement, the CAC can determine the terms of access. There's a presumption, again, in favour of granting the access. So, the main question for them isn't whether access is going to be granted, it's on what terms. Now the code itself contains model terms which the CAC view as the benchmark. If your access request from the union is actually based on those model terms, then it's going to be really difficult for you as an employer to argue in favour of significantly more restrictive terms. And of course, the CAC may simply impose those model terms.

Now, whilst the code that we keep referring to isn't actually legally binding, it will be taken into account by the CAC, courts and tribunals. So, if an employer wants to depart from it without good reason, this comes with a real risk. And of course, many employers may have read about the financial penalties that the CAC can impose, and these are particularly large.

For a breach of dealing with an access request or any subsequent CAC order, the first penalty can be up to £75,000. Now that doubles for a second or repeated failure to deal with it. And of course if there are other failures, that goes up to a penalty of £500,000 and there's actually no limit to how many maximum penalties can be imposed for breach of the same access agreement or order. So, you know, this is a really significant financial risk of not getting this right.

Amy (10:27)

Yeah, some of those figures are pretty eye-watering. And actually, when you've got these multi-site employers, and potentially, if there's not a joined-up approach, you can foresee how you can reach those figures. It's one of the questions that we've been discussing with some of our clients in terms of what you should do now to prepare. We've prepared a checklist which we'll make available alongside this podcast as well, and some materials which employers will find useful in how to deal with those.

So, a few points really to take from that about what employers should be doing now. Planning is really important. If one of these requests lands, kind of considering who owns that, who are the key stakeholders in that access request, don't leave that unclear. Be aware of what happens and who will manage that process and who will make those decisions, in relation to the terms of the access, and deal with that negotiation as well.

Emma mentioned having a dedicated email address, potentially looking at putting that on your website. That's a really useful thing to do as well. Also, looking at your physical premises. Some of the real kind of operational planning side of things. So, if you did get a request, a physical access request, where's that going to be? Where are your meeting rooms that you could utilise for that?

Thinking about security arrangements, if you need security clearance for certain parts of the business potentially. Also with digital access, considering how you might cascade the terms that sit around that.

And that links quite neatly into the other planning stage of things, which is, if you are already unionised, you have a recognised trade union, and you grant access, which most employers will do, to that union, considering the terms on which that is currently granted and formalising that in some way as well. So, looking at having a memorandum of understanding for access for your recognised trade union or putting one of these access agreements in place. And the benefit of that is that it will prevent that currently recognised union from utilising this process to make a request. But also, if you have an alternative challenger union, for example, this is something as Emma mentioned that the CAC will take into account, if there is already a union which has access for those workers that the other union are seeking access for.

So, lots of things that can be happening at the moment. But Emma, I'd be interested to know if you could give employers one piece of advice, what would you say that they should do before 30 October?

Emma (13:14)

I think they should do something now and not wait for that first request to land because as we've talked about today the deadlines are really tight.

So, the best time to work out who's going to deal with a request, across which sites, and using which communication channels really is before the clock starts to run on 30 October.

Amy (13:33)

Great advice, Emma. Well, thank you very much for joining us, and we will see you at the next one.

Emma (13:39)

Thank you.

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