Trade union access rights – what should employers be doing to prepare?

With effect from 30 October 2026, independent trade unions will be able to make a statutory request for access to workplaces, physically and/or digitally, so that they can meet, support, recruit, organise and represent workers, and facilitate collective bargaining.  This new right is effectively a stepping stone on the way to statutory recognition.

For employers in the real estate, construction and housebuilding sectors, this deserves particular attention.  Construction is an obvious target for union activity, while the way businesses in the sector are structured and operate may create practical complexities when access requests arrive due to the fact workers are spread across multiple developments and sites, operate through different group companies or joint venture structures, make extensive use of agency labour, and have workers located at premises controlled by clients or other third parties.

Employers with fewer than 21 workers are not affected, but this threshold is calculated across 'associated employers' and includes certain agency workers. Employers should therefore be wary of looking at the headcount of an individual site or employing entity in isolation.

In practice, it will be difficult to reject access requests without sound justification.  There is a presumption towards access and employers are required to take reasonable steps to facilitate this, with the Code repeatedly emphasising constructive engagement and cooperation.  Where a request is rejected, or where negotiations fail, either party can refer the matter to the Central Arbitration Committee (CAC), which would determine whether to grant access and, if so, on what terms. 

For businesses operating active construction or development sites, there may be genuine operational considerations around health and safety, security, working hours, site inductions, restricted areas and disruption to works. The focus should be on identifying practical arrangements that allow meaningful access while protecting the safe and effective operation of the site. 

There are some situations where the CAC may refuse access, to include where an employer already recognises a union or where there is an existing access agreement in place.  It will be important to look at the workers affected – an overlap of one or more workers could result in a refusal.  However, this is not automatic and in some circumstances the CAC may grant access to those workers not already covered.  This could become particularly relevant for larger construction businesses with different arrangements across different parts of their workforce or operations.

Employer may also receive competing access requests.  It's not about which union got in there first, or the employer having to choose between them.  Where there is already a live application or the applications overlap, an employer is required to make the unions aware (and provide a copy of any existing agreement(s) in place).  Where the unions are unable to resolve the position amongst themselves by withdrawing or revising their applications, or even making a joint application, the CAC would first look at whether access can be practically accommodated for both without unreasonable interference to the business. For major sites, that makes having a consistent strategy particularly important.  Different project teams agreeing different arrangements on an ad hoc basis could quickly become difficult to manage.  If the CAC cannot resolve the position, then both applications would be refused. 

While access agreements are not legally binding, they can be enforced by the CAC on application, with hefty fines for breaches by either party and a potential for the CAC to 'name and shame'.  It is therefore a good idea to ensure from the outset that the agreed arrangements are workable in practice.

The deadlines within the statutory framework are deliberately tight (for example, employers have 15 days to respond to a request) and so employers would be wise to take practical steps now.  The Code of Practice is a great starting point as it provides practical guidance and model terms, as well as template request and response forms.   

To get ahead, construction companies should be thinking about the following:

• Who controls the site? The employer may not own or control the premises on which its workers are based. Does a landowner, developer, principal contractor, client or other third party need to consent to access?
• Where can access safely take place? Are there suitable welfare, meeting or office facilities where a union can speak privately with workers without interfering with site operations?
• What site rules need to apply? Consider inductions, PPE, security and signing-in arrangements, restricted areas and other health and safety requirements.
• When should access occur? Construction work rarely fits neatly around a traditional office day. Access arrangements may need to take account of shift patterns, staggered starts, weekend work and workers moving between sites.
• Who is actually employed by whom? Employers should understand which workers belong to which group entity and where agency workers fit within the arrangements.
• How will digital access operate? Consider how communications can reach relevant workers without compromising personal data, commercially sensitive information or IT security.
• What information needs protecting? Live developments may involve commercially sensitive information about clients, pricing, projects, future developments and other contractors. Confidentiality arrangements should therefore be considered at the outset.

For those employers concerned about unions accessing their workforce, the best question to ask is why your workers would want to join a union.  Pay will inevitably be part of the picture, but employers should think more widely about workforce engagement: how effectively concerns can be raised; whether workers feel that management listens to them; whether site-level issues are dealt with consistently; and whether employees understand how decisions affecting them are made.

A recurring theme is that the reforms are designed to normalise and facilitate trade union engagement.  Employers that prepare early, and think through the issues, are likely to be in a much stronger position with a planned industrial relations strategy than those responding for the first time under statutory deadlines.