UK employers should assess strategies ahead of changes to union access rules

The ERB (215 pages/1.7 KB) has now passed the House of Commons and moves on to the House of Lords. Just before passing the Commons, the UK government introduced significant industrial relations amendments which include changes to its plan to broaden rights for unions to access workplaces. Access rights are a big part of the government’s ambition to reset the employer-union relationship towards increased union influence. They may also represent a cultural clash for organisations based overseas with UK subsidiaries.

Lucy Townley, employment law expert at Pinsent Masons, said: “Access is one of a series of changes and employers may want to start assessing now how industrial relations strategies can remain responsive to commercial needs while union leverage increases.”

Other than during recognition and recognition processes, unions currently do not have any independent right of access to workplaces and can only exercise their functions through individual members in the workplace. However, the ERB will introduce entirely new access rights and will also fast-track existing access rights of unions during recognition and derecognition processes.

The new framework for union access agreements are intended to allow unions to meet, represent, recruit or organise workers, whether or not they are members of a trade union, and to facilitate collective bargaining. The recent amendments included a new potential access purpose - to support a member with an employment-related matter – and also introduce a right for unions to request digital access as well as physical access to workplaces.

The intended approach will be that a listed trade union will be able to submit an access request to an employer in accordance with one of the defined access purposes. The employer will then provide a response within a set period and, if an agreement is reached within the defined negotiation period, the Central Arbitration Committee (CAC) will be notified of the terms. If an agreement is not reached, the CAC can decide whether or not access should be given, and on what terms. The CAC will determine access complaints, with power to impose financial penalties.

The CAC will take into account new access principles - that trade union officials should be able to access a workplace for any of the access purposes in any manner that does not unreasonably interfere with the employer’s business, and an employer should take reasonable steps to facilitate access, and access should be refused entirely only where it is reasonable in all the circumstances to do so. Further regulations and a code of practice are expected from the government and consultation will also allow employers to feedback from their perspective.

Townley said: “Negotiations between employers and unions to reach an access agreement will take place in the shadow of the access principles that the CAC must consider if an agreement cannot be reached. The access principles appear to be weighted towards allowing access, and employers may find it difficult to limit access. In anticipation of requests, employers may want to plan a negotiation strategy determining what access can be easily offered, what can be agreed during negotiations and what any red line around access may be.”

“The possibility of disputes around access means that access agreements should be clearly documented without ambiguity. Managers dealing with union access will need training on the scope of agreed access terms so they know what they must allow and what access may be union overreach. Employers may want to develop workforce messaging around why union access is being allowed, especially where a union is not currently recognised. Employees are unlikely to be aware of legal changes and may assume the employer has initiated union intervention”.

The inclusion of digital as well as physical access in the amendments may have a significant impact on industrial relations. It would enable, for example, union-related updates to be posted on an employer’s intranet page and an employer may also have to provide information to their workers on behalf of a union within an all-staff email. The scope and precise details of digital access will be defined in secondary legislation. The government has promised further consultation but says this brings access provisions in line with modern day workplaces, reflecting that some employers do not have a traditional physical workplace.

Townley said: “Handing over use of internal communication tools may be a surprising development for employers. Digital communications are a tool employers use to try to align the workforce with business interests. Counter-messaging from unions may clash with corporate messaging. Digital tools are also a really useful way to engage directly with employees and gather feedback. Easy digital access by unions may encourage employees to go straight to the union on certain topics, rather than employers. Employers may want to remind employees of the effectiveness of direct employer-workforce dialogue.”

The amendments further facilitate union access for recognition and derecognition purposes. A fast-track, 20-working day negotiation period on voluntary access will be introduced that will run parallel with the 20-working day negotiation period in relation to agreeing the bargaining unit. The 20-working day period will start from the point the CAC accepts a recognition application. If there is no agreement on access at the end of the 15 working days, the CAC would then have 10 working days to adjudicate and issue a decision setting out access terms.

“These timeframes do not leave a lot of room for employers to consider strategy,” said Townley. “If an existing access agreement is in place with a non-recognised union, this may provide a quick template that can be reused”.