UK Employment Law Reform Update: Further Details On Trade Union Access Rights, NDA Restrictions, Equality Action Plans And Potential TUPE Reform

The Government has issued a further round of consultations and other publications this month, confirming some of the likely detail on key reforms in the Employment Rights Act 2025 (ERA 2025). Points to note include:

• A consultation on a draft code of practice on trade unions' right of access into workplaces is open until 20 May 2026. The initial timetable proposed by the Government for employers to respond to and negotiate requests has been lengthened slightly, but will still prove challenging, while the range of potential penalties for breach of access agreements has been increased to £500,000. This new right to access an employer's workplaces to meet, recruit, support, represent, organise, or facilitate collective bargaining for workers will apply to all employers with over 21 workers, regardless of whether there are any union members or supporters in the workforce, and is intended to make it easier for unions ultimately to win recognition for collective bargaining. It is potentially a very significant shift in the landscape for non-unionised private sector employers, scheduled to come into force in October 2026, and one that requires consideration and preparation now. Further details are below.
• The Government has finally confirmed that it intends to bring into force the ERA 2025 provisions restricting the use of non-disclosure agreements (NDAs) in relation to discrimination and harassment in 2027 (rather than October 2026, when the other harassment reforms are due). The proposed requirements for such an NDA to be valid are similar to the conditions for a statutory settlement agreement waiving statutory employment claims, with additional conditions including that the legal advice to the worker on the NDA's terms, effect and legal limitations must be in writing, that it can only apply to harassment or discrimination that has already occurred, and that there should be a mandatory 14 day cooling off period. The Government is seeking views by 8 July 2026 on these and other potential conditions, as well as on the list of persons to whom disclosure should be permitted in any event and whether to extend protection beyond 'workers'. See below for further details.
• The Government has stated (in the press release concerning NDAs) that it will consult on the whistleblowing regime in summer 2026.
• Further guidance on creating a gender equality action plan has been published – this will be voluntary for 2026-2027, but is expected to be made a mandatory duty for larger employers with at least 250 employees for the year 2027-2028 (and the plans will therefore need to be published by April 2028). The guidance clarifies that employers will have to choose at least two actions, one to address their gender pay gap and one to support menopausal employees, both of which must be "new or in progress" and must be supported by a short narrative explaining why the action was chosen and how it will be monitored and evaluated. A list of suggested actions was published last month – see our blog post here. Once the plans become mandatory, employers will be required to carry out an interim progress review in relation to their plan generally after one and two years, and a more detailed review in relation to progress on each action at the three year point. 
• The Government has published a call for evidence on TUPE, closing on 1 July 2026, asking general questions about the adequacy and clarity of existing protections. It does not propose any specific reforms but does state that the Government is committed to strengthening the existing sets of rights and protections for workers. Further consultation is promised on any specific proposals developed based on the responses, but there is no suggested timetable for this. 
• The EHRC's amended Code of Practice for services, public functions, and associations, updated to reflect the 2025 Supreme Court ruling in For Women Scotland, should be published by the Summer. The EHRC amended their initial draft following government feedback and have resubmitted it to the Secretary of State. The Government has indicated that this will be laid before Parliament for approval as soon as practicable after the May 2026 local elections; it must be laid for 40 days after which it will be deemed approved provided there is no resolution to reject it.. The EHRC has also confirmed that it will update its guidance for employers "in due course".
• The Home Office is consulting until 29 April 2026 on new draft updated code of practice for employers on avoiding unlawful discrimination while preventing illegal working. The revisions reflect the forthcoming expansion of the right to work regime to cover worker contracts, individual sub-contractors and online matching services, anticipated to apply from 1 October 2026. 

Trade union rights to digital and physical access to the workplace

The ERA 2025 will give independent trade unions a new right to request access to an employer's workplaces to meet, recruit, support, represent, organise, or facilitate collective bargaining for workers (but not to organise industrial action), without needing to show any minimum level of support or membership. Where a union and employer have failed to reach an access agreement on a voluntary basis, a legislative framework will provide for a statutory request and negotiation period and, if not agreed, for the union to apply to the Central Arbitration Committee (CAC) for an order for access. A consultation on a draft Code of Practice to support this right has now been published, open until 20 May 2026, along with a response to the earlier consultation on the new right itself. The content of the Code does not impose any legal obligations as such, but will be admissible in relevant legal proceedings.

The bulk of the proposals, as discussed in our blog post here, remain unchanged. Points to note include the following (bearing in mind that further changes could still be made to the final provisions, though these are unlikely to be substantial):

Procedure

• The Government appears to have accepted that the timetable proposed in the initial consultation was too tight. The revised timetable provides for the employer to respond to the union's written formal request within 15 (originally 5) working days, though the parties can agree to extend this. If the employer does not agree to the request, there is then a negotiation period of 25 (originally 15) working days during which the parties are expected to negotiate in good faith to look for pragmatic practical solutions. A carefully thought-through negotiation strategy (with clarity around "red lines" and acceptable concessions) and paper trail will be important. The draft Code refers to the possibility of the parties agreeing to continue negotiations after this period or applying to the CAC for an extension of the negotiation period. If agreement is reached, the CAC must be notified (and its enforcement powers will apply in respect of the agreement); if no agreement is reached, there is a further period of 15 working days (which can be extended to 30) to refer the application to the CAC for decision.
• Optional templates are annexed to the draft Code for a request, response, and notification to the CAC of an agreement or agreed variation/revocation. Secure email is the preferred option for the request, with flexibility to use post where appropriate. The request must set out basic information including the type of access being requested (whether physical, digital or both, and the nature of access, eg in-person meetings or access to digital worker forums), the rationale for the type of access requested and the support required from the employer to facilitate access; the notice period the union will provide for the initial access visit and any subsequent visits; the frequency of access requested and rationale for this; and if physical access is requested, the workplace locations involved. If an employer accepts the request its response must set out basic information including details of when workers are present at the workplace(s) and any facilities available for the purpose of facilitating access. If the employer is rejecting part or all of a request, it must include its reasons, and confirmation of whether the employer has received another access request from, or is engaged in negotiations with, another trade union. The draft Code notes that access arrangements should be based on the facts of the situation and the local circumstances of the workplace, and the aim is to promote sound and productive industrial relations between the parties - suggesting that any objections to an access request will need to be firmly based on issues affecting the proper operation of the business that will arise in relation to the specific request regarding the specific workplace. 

Terms of access agreement

• The operation of an access agreement must balance the union's right to enter a workplace with the employer's right to operate without unreasonable interference. Access should be refused entirely only where this is reasonable in all the circumstances. This suggests a presumption in favour of some form of access, and that it will be rare for employers to successfully block a request altogether – proposing more restricted conditions is likely to be a more successful strategy.
• The CAC will only grant access where this provides for the employer to receive at least 5 working days' notice of the first instance of access.
• There is a two year long stop on access agreements, whether agreed between the parties or imposed by the CAC. As this would not apply to an agreement reached voluntarily without a formal statutory request, employers will want to ensure they include an expiry period in any such agreement.
• It may be reasonable for the CAC to refuse access if at least one worker subject to the request is represented by a different independent trade union which is already recognised (or has an application for statutory recognition in progress) or a worker who is covered by an existing statutory access agreement or another pending statutory access request (in which case both pending requests may be refused – two or more unions may instead make a joint request).
• It will also be reasonable for the CAC to refuse access where an application would require excessive resource allocation (eg, constructing new meeting spaces, procuring new IT systems, making capital investments purely to facilitate access, incurring significant recurring costs or experiencing material operational disruption). Reasonable steps to facilitate access could include creating online calls or moving furniture around to make space for a physical meeting. 
• The CAC is more likely to grant access if the request is consistent with certain 'model' terms. These include an in person or virtual meeting of a frequency of 'up to weekly' (although this can be averaged over a longer period of time). A union must also be required to provide at least 2 working days' notice of an upcoming physical/digital access visit (other than the initial visit requiring 5 days).
• The right of access will be available only in relation to employers who, together with their associated employers, have at least 21 workers (mirroring the threshold size for statutory union recognition rights), or who are subject to sector-level statutory bargaining processes. 

Operation of the access agreement 

• The draft Code provides practical guidance about where physical access should take place and notes that this should usually be during normal hours but at times which minimise disruption to the business; it suggests consideration should be given to holding events during rest periods or towards the end of a shift where possible, or during induction or training events.
• It will be reasonable to require union officials attending the workplace to comply with health and safety, security and other reasonable instructions.
• Privacy of access meetings must be respected, including ensuring any security cameras or other recording equipment are not used to monitor or record meetings, and managers/supervisors should only attend a meeting including other workers if invited by the union. 
• Where staff are working at a third party's premises, the employer must take reasonable steps to facilitate access and, if this cannot be agreed, the issue can be referred to the CAC to decide and enforce access against the third party.
• Digital access can be through the employer cascading union communications or information to employers' emails or facilitating an online meeting on its IT platform; direct digital access between union and worker will require the worker to consent (for data protection reasons), either indicated to the employer or given direct to the union.

Enforcement

• The Government is proceeding with the three-tier enforcement model proposed in the initial consultation, but it is increasing the maximum penalty cap to £500,000 for the third breach and subsequent non-compliance under the same access agreement. Complaints of breach of access agreements (other than those reached voluntarily before a statutory request is made) can be made to the CAC. The CAC must have regard to the gravity and duration of the breach, reasons for the breach, number of workers affected, size/resources of the employer, and any relevant history of non-compliance.
• Appeals lie to the EAT.

The latest in our mini-series of podcasts covering the ERA 2025 reforms covers this and other union-related reforms, and is available here. We also have a briefing available to clients on request which looks in more detail at how best to prepare for the new right of access as well as other union-related reforms.

Non-disclosure agreements (NDAs) concerning workplace discrimination / harassment

The ERA 2025 provides that, unless they qualify as "excepted agreements", any provision in an agreement between an employer and worker (including in a statutory settlement agreement or Acas-facilitated COT3) will be void to the extent that they prevent a worker from making allegations or disclosures of information relating to workplace harassment or discrimination or failure to make reasonable adjustments, or an employer's response to the harassment/discrimination or the making of the allegation/disclosure. Regulations will define the conditions for "excepted agreements"; the Government has just launched a consultation seeking views by 8 July 2026 on what these conditions should be. The Government has also now confirmed that this reform is scheduled to be brought into force in 2027, and will apply to agreements made after the commencement date.

The consultation proposes the following conditions for an excepted agreement:

• A worker should receive written advice from a relevant independent adviser explaining the NDA's terms, effect and legal limitations before entering into the excepted agreement. Employers will not be required to pay for the advice. 
• After receiving advice, the worker should confirm in writing their preference to enter into the excepted agreement. The Government is seeking views on whether employers should be preventing from suggesting confidentiality or requesting an excepted agreement.
• There should be a mandatory 14 calendar day cooling off period, during which the worker could withdraw without penalty. Views are sought on whether this withdrawal could be limited only to the confidentiality clauses or apply to the whole agreement, whether the period should be shorter or waivable by the worker, and on the Government's position that a pre-signing statutory review period is not required in addition to or instead of a cooling off period. 
• A copy of the signed NDA should be provided in writing to all parties and in an accessible format. The Government is consulting on its view that plain language drafting should be specified in guidance rather than becoming a statutory requirement.
• Excepted agreements could cover only harassment or discrimination that has already occurred, preventing ‘pre dispute’ NDAs. 
• Views are sought as to whether the confidentiality obligations should be required to be time limited and subject to a statutory maximum duration (suggested durations range from 1 year to 6-10 years), and whether there should be any other conditions or safeguards.

These are similar to the conditions for a statutory settlement agreement, although extend the requirements in some respects. In particular, the cooling off period could be problematic where settlement is reached shortly before a tribunal hearing, unless it can be waived, while a cap on duration could impact on the value of these agreements for employers.

An excepted agreement will not be able to prevent workers from whistleblowing or reporting a crime. In addition, the consultation proposes that workers should be able to make 'permitted disclosures' about relevant harassment and discrimination to certain individuals and bodies in order to receive advice or support. These broadly mirror the list of persons to whom permitted disclosures of alleged crimes can be made under the Victims and Prisoners Act 2024 in force from October 2025. Additions to that list include disclosures to Acas, relevant trade union representatives, and a broader definition of close family (to include siblings, grandparents and aunts or uncles). The consultation also asks whether disclosures to prospective employers or to friends and wider family should be allowed.

Finally, the consultation seeks views on extending protection at a future point to individuals beyond an employer's workers, for example to agency workers and secondees; work experience interns and trainees; student nurses and midwives; certain NHS professionals; and vulnerable groups of self-employed individuals eg in particular industries.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.