Preparing for the trade union right of access: what charities need to know

Many charities will instinctively support the principle of collectivism and the right of staff to organise. But supporting the principle and being operationally ready for what it looks like in practice are two different things. Getting ahead of this now will help charities negotiate access arrangements that balance union rights with the realities of frontline service delivery.

What does the new right involve?

Any independent trade union can apply for access to a charity's workplace. The model terms in the Code of Practice provide for weekly access to staff. However the level of access requested should not unreasonably interfere with the employer's business.

If a charity receives an access request, it has just 15 working days to respond, followed by a 25-working-day negotiation period to agree an access agreement. These are tight timescales, particularly where decisions need board or senior leadership input.

Practical challenges for charities

Charities should consider in advance where meetings could take place, how much notice should be given, how frequently access should occur and how many workers can reasonably be released at one time without compromising operations.

One issue that may catch charities off guard is pay. The Code of Practice advises that workers who attend a union meeting during working hours under an access arrangement should be paid in full. For charities operating within tight budgets, this has obvious cost and logistical implications, particularly if meetings take place regularly and engagement is high.

This also raises questions about cover and service continuity. The Code requires that access should not unreasonably interfere with the employer's business, but the employer must take reasonable steps to facilitate it. In practice, it is highly unlikely that a charity could refuse access altogether. However, where releasing workers would leave the charity short-staffed, it may be reasonable to negotiate measures such as staggered attendance, shorter meetings at shift changes, or digital access to recorded meetings where a whole team cannot be released at once. The Code does not offer detailed guidance on how charity employers should navigate these issues in practice or deal with questions such as whether it would be reasonable to put in place any restrictions on how many meetings during working hours it is reasonable to release employees to attend.

Enforcement

Either party can refer a breach of an access agreement to the CAC, which may order access to take place, vary the agreement's terms, or impose a financial penalty. Fines escalate quickly: up to £75,000 for a first penalty, up to £150,000 for a second, and up to £500,000 for a third or subsequent breach, applied cumulatively across sites. Importantly, the union is equally required to carry out access without unreasonably interfering with the charity's operations.

What should charities do now?

A negotiated access agreement reached voluntarily will be preferable to one imposed by the Central Arbitration Committee. Charities that have thought through the practical arrangements in advance, including where meetings can take place, the frequency of access, how frontline cover will work, how digital access will be managed, and who will handle requests and act as the point of contact with unions, will be far better placed to negotiate an agreement that works for their organisation and their staff without unreasonable interference with the furtherance of the charity's objects.

We have prepared a checklist to help charities think through what a good, practical access arrangement might look like to enable a timely response should an access request be received.

If you would like a copy, or if you would like tailored advice on preparing for the new right, please get in touch with Joanne Oliver.