UK Labor Law Quarterly Update

News round-up

• Trade union workplace access: government makes key policy decisions
• Trade union membership increases: government statistics

UK labor case law

• Protected trade union activities: EAT dismisses union official’s unfair dismissal appeal

Eversheds Sutherland labor law podcasts, events and training

• Our 23rd Annual Labor relations conference: Turning legal change into workplace reality, 8 October 2026, 10.00am - 4.00pm, London
• Industrial relations masterclass training course, 18 November 2026, 9.30am - 4.30pm, London

News round-up

Trade union workplace access: government makes key policy decisions

Trade unions do not currently have a general right to access workplaces. In October 2026, the Employment Rights Act 2025 changes this by introducing a statutory right of access, both physically and digitally, for the purposes of meeting, supporting, representing, recruiting, or organising workers, and facilitating collective bargaining (but not for organising industrial action). Note that the right applies to England, Wales and Scotland but not Northern Ireland, where employment law is devolved.

The government has responded to its previous consultation on access, setting out how it will work in practice. Key decisions include:

• following an initial proven breach a three-tier enforcement model will apply to any subsequent proven breach, with maximum penalties of £75,000 (first breach), £150,000 (second breach), and £500,000 (third and subsequent breaches)
• the presence of a recognised union representing one or more of the workers that a union is seeking access to may constitute a reasonable basis for access to be refused. Similarly, it may also be refused where there is an ongoing statutory recognition process, a statutory access agreement in place or another union has already submitted an access request – conditions apply. Whilst there is a presumption that refusal will be reasonable in these circumstances, the Central Arbitration Committee (CAC) retains a broad discretion to grant access nonetheless
• employers with fewer than 21 workers on a group wide basis will be exempt
• access requests and responses must be made in writing, primarily by email, with parties expected to use a standardised template
• time periods have been extended from those originally proposed: the employer response period moves from 5 to 15 working days, the negotiation period from 15 to 25 working days, and the (CAC) referral period from 25 to 55 working days
• access agreements will have a maximum duration of two years and ‘model’ terms will include weekly access with two-working days’ notice for each access visit (five for the first visit)

Draft Code of Practice

The government has also consulted on a supporting Code of Practice (now closed). The draft Code is structured around:

• establishing access agreements (how unions apply, how employers respond, and how negotiations and CAC referrals should proceed)
• the operation of access agreements (location, timing, privacy, digital access, and third-party premises)
• resolving disputes and enforcement (complaints, CAC powers, and appeals to the Employment Appeal Tribunal)

For example, the Code addresses privacy of meetings (employers must not attend unless invited, and existing surveillance measures must be discussed), digital access (such as the employer cascading factual union communications or information as requested and direct union contact only with worker consent), and third-party premises (employers must take reasonable steps to facilitate access even where they do not control the premises). 

Next steps and employers responses

Regulations must be approved by Parliament, together with the Code, before the right of access comes into effect in October. The regulations will confirm the detailed requirements of the new right.

Access is a significant workplace change and employers should prepare now. In particular, employers should note that there is a presumption that, once requested, a union will be granted access. Employers are expected to take reasonable steps to facilitate access by officials and should only refuse access entirely where it is reasonable in all the circumstances to do so.

In responding, employers should, as a minimum:

• familiarise themselves with the requirements of the legislation and the Code of Practice, given the tight timescales for employers to respond once a trade union seeks to exercise their new right and the prospect of significant enforcement penalties
• assess the likelihood of a trade union seeking access, including from a competitor union where there are recognition arrangements in place, or from an existing union seeking to extend its reach
• prepare a response action plan (to include triggering internal escalation, key decision points and timeframes)
• audit customary communication channels to prepare for digital access
• train managers
• identify any significant issues arising from having third parties accessing a workplace (health and safety, regulatory requirements, data privacy, confidentiality, liability, significant business disruption etc)
• review any existing access agreements against the new statutory framework and check for any differences
  
   

Trade union membership increases

According to the latest government statistical bulletin, trade union membership rose slightly in 2025 with the proportion of employees who are union members at 22.4% (up from 22%). Growth was driven more by the public sector than the private sector.

The long‑term trend is still downward, however, the decline has slowed in recent years with some periods of stability and modest increases. For further information, read the bulletin.

UK labor case law

Protected trade union activities: union official’s unfair dismissal appeal dismissed

In Holmes v Kirklees Council, a long-serving employee and union branch secretary was dismissed without notice in response to colleagues’ complaints over alleged bullying and violent behaviour. H claimed unsuccessfully that his dismissal was automatically unfair on protected trade union grounds (legislation provides that the dismissal of an employee is unfair if the reason is that they had taken part, or proposed to take part, in the activities of an independent trade union at an appropriate time).

The Employment Appeal Tribunal dismissed H’s appeal as his conduct, although occurring in a trade union context, was "wholly unreasonable and extraneous" to protected trade union activities and therefore genuinely separable from them. The threshold is high, for example, an employee should not lose protection because of conduct that was ill-judged or unreasonable - it must be wholly unreasonable.

This case offers helpful guidance to employers when faced with similar circumstances, given that the dividing line between protected trade union activities and separable misconduct is difficult to draw in practice. It illustrates that trade union officials are not immune from disciplinary action for serious misconduct such as threats of violence, provided the employer can demonstrate that the dismissal was motivated by the separable misconduct rather than the union activities themselves. However, employers should always proceed with caution, conduct an objective, thorough and fair disciplinary process, and take advice given the risks involved.

Employment law is a devolved matter in Northern Ireland and the issues set out above may not all apply in NI. For NI specific advice contact our Belfast office.