The trade union change smaller employers shouldn’t ignore

Do you employ at least 21 staff? If so, are you aware of a fundamental change in trade union access rights under the Employment Rights Act 2025?

Most Moorepay clients don’t currently recognise a trade union for collective bargaining purposes (pay, and terms and conditions negotiations). You may even be aware that none of your staff are trade union members. And, until now, most unions didn’t really target small and medium size organisations. Too much effort required for strictly limited returns.

Things are about to change

If the Government maintains its current timetable, new trade union access rights will apply from October. However, a final Code of Practice and new Regulations have yet to emerge. Plus, the government may have more pressing issues requiring attention. And it’s not long before parliament goes into summer recess. Implementation may be delayed.

So, what’s changing?

The Employment Rights Act gives independent unions a right of access to your organisation. It doesn’t matter there are no current union members, or no union recognition agreement. They’ll have the right to seek access to talk to staff about their union. This could be one (or more) physical meetings, or remote discussions via ‘Zoom’, ‘Teams’, etc. Access can be requested during normal working hours. And you may be expected to provide suitable facilities.

Refusing to co-operate risks enforcement measures and, potentially, financial penalties. But watch out for GDPR responsibilities before disclosing personal data.

Will I be targeted?

Twenty years ago, the answer for most SMEs would almost certainly be no. Now, however, in the digital age, the answer is maybe. For instance, a hospitality business with ten restaurants, each employing twenty staff would now be easier to organise remotely. As would a large cluster of GP surgeries, a retail chain etc.

In 2024/25, union membership, for the first time in years, increased in both private and public sector. However, unions, like every other organisation, have finite resources. They will inevitably look for the most promising organising opportunities at lowest cost.

They may continue to follow the traditional route of membership numbers; large scale staffing presence at set locations.  They could target geographically; for instance, businesses in a particular business park. They may search for organisations with significant employment tribunal or court cases, health and safety prosecutions, poor Glassdoor reviews, etc.

Most current union membership is in the public sector. So, organisations with a close public sector relationship could be early targets. Some big unions already have significant presence. Reaching out to day nurseries, academies, domiciliary care providers, housing associations etc. would be fairly straightforward.

What should I do now?

Not a lot, really, until the final Regulations and Code of Practice are clear. We’ll offer further guidance when the current fog lifts. However, it’s no bad idea to make a senior leadership team member responsible now for this developing agenda.

It’s also sensible to review how you currently inform and communicate with staff. Are they well briefed on achievements, developments, long term plans, perceived ‘bumps in the road’ etc. If the first they hear is via local or social media, that’s a red flag. Do you have information and consultation machinery? A staff committee or council? Remote updates by senior managers that all staff can join online or download?

You’ll no doubt remember P and O Ferries mass ‘redundancy by video’ in 2022. That met with a huge outcry from unions, politicians of all shades, and widespread public condemnation. It did nothing for industrial relations, nor secured longer-term profitability. Their CEO eventually resigned. Incidentally, another aspect of the Employment Rights Act is enhanced ‘fire and rehire’ provisions, further strengthening hastily introduced, post P and O, protections.

Are unions scary?

Not really. Independent unions are governed by rules and a constitution and held to account annually by their members, somewhat like companies. They rely on members’ subscriptions to fund activities and must account diligently for spending. Statutory provisions underpin how they operate. And, as there is often a choice of union, potential members look closely at what they can expect for their subscriptions (which can be fairly expensive).

Most independent union representatives and full-time officials strive for a positive relationship with employers. They can be helpful e.g. explaining future change. Industrial action these days is always an avenue of last resort and seldom invoked. Most industrial action you’ll be aware of will be public sector (e.g. doctors) or closely related (e.g. rail and Tube workers).

Some organisations that present as though they’re unions may offer little more than an insurance policy or legal advice. Many home and motor insurance policies already include such provisions. And they may not be recognised by the Certification Officer. You can check. Only independent unions qualify for the new access right.

And it’s only access

This legislation is limited to seeking access to talk to your staff about joining and being part of a union. It’s a recruitment tool, really. Every member of staff makes their own mind up whether union membership or that upgrade to Sky TV is more attractive.

However, when all this goes live, and if lots of staff decide to join, you can expect a secondary approach to establish a recognition agreement (pay and conditions bargaining), and to establish a facilities agreement (time off and facilities for  the union’s local stewards). But that’s a topic for another day!