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Last week the Government issued four of its promised consultation on planned reforms set out in the Employment Rights Bill, consulting until 18 December 2025 on the proposed duty to inform workers of the right to join a trade union and union rights of access, and until15 January 2026 on enhanced workplace protections against dismissal for pregnant women and new mothers, and on a new day-one entitlement to bereavement leave including for early pregnancy loss. The detail of these changes is to be determined by the secondary legislation informed by these consultations, which therefore represent an important opportunity for the business voice to be taken into account to shape the practical implications.
Further consultations are expected in the coming weeks, including on day one unfair dismissal rights, guaranteed hours offers, fire-and-rehire restrictions, and additional union-related changes including to balloting and union recognition processes – although the first two may be further delayed by the ongoing 'ping pong' between the Houses of Parliament over these provisions in the Bill. This afternoon (5 November) the Commons voted to reject the Lords' changes to these provisions, returning the Bill once again to the Lords.
The two union-related consultations cover proposed reforms intended to come into force in October 2026 with the aim of encouraging increased union membership, union recognition and collective bargaining.
1. Duty to inform workers of right to join a trade union
The consultation seeks views on practical issues such as the content and form of the statement, and the manner and frequency of delivery. The proposal is for much more than a simple statement of the right to join a union added into the section 1 ERA written statement. Instead, a separate statement is envisaged including a 'neutral' overview (ie 'factual and explanatory, rather than promotional') of the functions of a trade union, a summary of union members' statutory rights (eg protection against detriment for joining a union), a list of all the trade unions that the employer recognises, and a signpost to a GOV.UK page with a list of current trade unions. The government's preference (and therefore perhaps the most likely outcome of the consultation) is that employers would be required to use a standard statement drafted by the government, with the employer adding only the list of its recognised unions. No draft wording is provided and there is no commitment to consultation over the wording.
In terms of delivery, the preferred option is to require the statement to be delivered directly to new workers alongside the s1 statement; for existing workers it could be delivered either directly on an annual basis, or indirectly (eg constantly available on noticeboards or intranets) without the need for a reminder (although if a reminder were required, the preference is for this to be annual).
Note that the proposed remedy for breach of this new requirement is the same as for failure to provide a s1 ERA statement, namely where the individual has successfully brought another specified claim, the tribunal can award between two and four weeks' pay (subject to the statutory weekly cap).
2. Right of trade unions to access workplace
The Employment Rights Bill will establish a statutory right for independent trade unions to access workplaces physically and communicate with workers both in person and digitally (ie, through an IT platform or providing information via the employer) in order to meet, support, represent, recruit or organise workers or facilitate collective bargaining (but not to organise industrial action). The consultation seeks views on options in respect of the procedure and timings for a union to request access and for the employer to respond, how the Central Arbitration Committee (CAC) will determine access if this is not agreed by the parties within a negotiation period, and CAC enforcement in the event of breaches of access agreements.
The government will consult on a new statutory Code of Practice on trade union rights of access in Spring 2026, to set out best practice and practical guidance. This will include a (voluntary) template for access requests and responses and for notifications to the CAC, but no details have been provided. The Code may well contain provisions similar to those in the 2005 Code of Practice on access arrangements during recognition/derecognition ballots, for example provision for the union to request information (eg about the employer's methods of communication with its workforce, workplace premises and patterns of work), the option for union 'surgeries' during working hours, the need to respect privacy of meetings etc..
The government proposes that the union's request must set out specified information including 'a description of the group of workers that the union is seeking access to' and the purpose, type (including nature of physical and/or digital access), frequency and notice period for the requested access. The employer would then have five working days to respond (to include if, and an explanation of why, any part of the request has been rejected), followed by a negotiation period of 15 working days after which the union can notify the CAC if no agreement has been reached. An application to the CAC to determine a request must be made within 25 working days starting on the date the request is submitted (ie, five working days after the negotiation period has ended).
In relation to the CAC determining access rights, the Employment Rights Bill itself specifies that the manner of access granted must not unreasonably interfere with the employer's business, that the employer should only have to take reasonable steps to facilitate access, and that access should be refused entirely only where this is reasonable. Secondary legislation will set out further factors that the CAC must consider and the consultation seeks views on the government's proposals as follows:
- an exemption for employers (inclusive of associated employers) with fewer than 21 workers (this mirrors the threshold for statutory recognition requests)
- there should be a minimum of five working days between the access agreement being finalised and the first access
- access agreements should have an expiry period of a maximum of two years
- it would be reasonable for the CAC to refuse access if the employer already recognises an independent union in respect of the relevant group of workers (although the CAC could decide differently in a particular case)
- employers should not be required to construct new meeting places or implement new IT systems to facilitate access
- requests that are consistent with 'model' access agreements (which would provide for weekly access and a minimum of two working days' notice before access takes place) are more likely to be dealt with speedily by the CAC and more likely to be granted.
The government is proposing that the maximum fine for breach of an access agreement would be £75,000 initially, increasing to £150,000 for subsequent penalties. Factors to be considered when deciding the penalty include the gravity, duration and reason for the failure, the number of workers affected, the size of the organisation and any previous history of breach.
The extent of the impact of this proposal on employers is likely to depend on trade union resources and priorities, with larger non-unionised employers, particularly those in heavily unionised sectors, likely to be the first targets. The proposed tight timescales both for reaching an access agreement and, under the model agreement, for employers to prepare for upcoming and potentially weekly access may prove challenging, particularly where there could be multiple unions all seeking access to the same group of workers. All large employers, whether they currently recognise a union or not, should start preparing for these new rights, and a potential increase in union membership, well before next October. Employers that already recognise a union in respect of part of their workforce may wish to consider whether extending recognition to the whole workforce would be a sensible strategy.
The second two consultations closing on 15 January 2026 concern reforms to family friendly rights in the Employment Rights Bill planned for 2027, and comprise a series of questions without indicating preferred government policy. Please click here for further details.
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