The Employment Rights Act 2025 (ERA 2025) is set to reshape workplace relations in the care sector with significant new rights for trade unions to access workplaces and negotiate terms and conditions of employment.
We are already advising care providers on approaches from trade unions seeking access and recognition and expect activity to increase as the new rights come into force. It is therefore imperative that care providers start planning now for an approach by a trade union so that they are well prepared and can respond effectively.
What is changing?
- Duty to inform workers.
- Access to workplaces.
- An easier route to statutory recognition.
Duty to inform workers
In the future, employers must give every worker a written statement of their right to join a trade union, at the same time as the written employment contract and at prescribed intervals thereafter. This seeks to increase employee awareness of trade unions and their right to join. This duty is expected to come into force in the next few months with the implementing regulations still awaited.
Access to workplaces
From 30th October 2026, an independent trade union may request access to meet, support, represent, organise and recruit workers. There is no minimum union membership or support threshold for a union to make an access request.
Until 30th October 2026, a union can only request access voluntarily, and a provider is free to refuse. After that date a union may make a statutory request for access. The provider has 15 working days to respond, using the standard form prescribed by the Code of Practice (the final version of which is awaiting publication).
Where access is refused, or not agreed in full, the parties have 25 working days to negotiate terms. If no agreement is reached, the union may apply to the Central Arbitration Committee (CAC) which may determine the access terms and impose an access agreement. The tight deadlines in the statutory process mean that providers need to prepare in advance.
The grounds on which refusal of an access request will be reasonable are narrow: national security; prejudice to a criminal investigation; exceptional health and safety risk; and an existing agreement with, or live request from, another independent union covering the same workers. In most cases, providers will not have acceptable grounds for rejecting a request.
It is important that providers negotiate appropriate access terms with unions that they can adhere to in practice, rather than relying on the model terms in the Code of Practice or the union’s template agreement. The Code of Practice recommends access up to once per week and for meetings with unions to be arranged at times when all workers are available at the same time. Clearly such terms are not workable in care settings. Key points for negotiation include location, timing and method of access.
Care homes are both workplaces and residents’ homes but are covered by the access requirements; the Code of Practice expects access at the actual workplace where practicable, for example a meeting room or adjoining area. Appropriate safeguarding, infection control, health and safety and continuity of care considerations will need to be considered.
In supported living and homecare services it may be more difficult to provide physical access as service users’ homes are private dwellings and all outside the requirement to physical access. The practical consequence is that digital access may need to be the primary route of access for these workers.
Agreeing digital access will require consideration of the appropriate communication channels, such as email, intranet and whether the union communicates directly with workers or the provider cascades material on its behalf. The volume and frequency of digital access should also be agreed to gain a mutual understanding of what is reasonable.
The CAC may impose a financial penalty on a complaint that an access agreement has been breached, with fines of up to £75,000 for a first breach, up to £150,000 for repeated non-compliance and up to £500,000 thereafter.
Escalation does not require later breaches to be of the same nature, and breaches at multiple sites under a single agreement may be treated cumulatively. Voluntary access agreements sit outside the enforcement regime and therefore reduce potential financial exposure for providers.
An easier route to statutory recognition
Access rights provide unions with a means of increasing their membership so that they can acquire recognition and collective bargaining rights over pay and terms and conditions. A union will usually seek voluntary recognition first, but if that is refused it may apply to the CAC for statutory recognition. That route is not new but in April this year, the legal thresholds were reduced, making it easier for unions to acquire statutory recognition.
A union must still show that at least 10% of the proposed bargaining unit are members of the union, but future regulations could reduce it to as little as 2%. The bargaining unit is the group of workers the union is seeking to represent and could potentially be the whole workforce, a single service, or a group of services. The size of the bargaining unit will determine how easily the union can meet the 10% threshold.
Previously, to secure statutory recognition through a ballot of employees, a majority of the votes cast had to be in favour of recognition and at least 40% of the workers in the bargaining unit had to support it. Now, the 40% threshold has been removed, meaning that a union only needs a simple majority of the votes cast to secure statutory recognition.
By way of example, if there are 100 workers in the bargaining unit, but only 30 votes, 16 votes in favour of recognition would be sufficient. Previously the union would have needed at least 40 of the 100 workers to vote in favour. The combined effect is that a union with modest membership and a low turnout can now secure recognition where it previously could not.
What is happening in the sector?
Since April, we have seen a marked increase in union activity across the sector. Unsurprisingly, the sector is being prioritised by unions given the size of the workforce and prevailing pay levels. Nationally, senior officials are approaching the largest providers about access and recognition; the return is greatest where the workforce is largest. Locally, regional officials are approaching SME providers, and in almost every case we have dealt with, the request has been for voluntary recognition and collective bargaining rather than access alone.
Some providers are developing their strategies and taking other steps to prepare for receiving requests from unions. Others are already in negotiations with unions over access or recognition terms. For those that have not yet taken any action, now is the time to get started; a union request could be received at any time now and providers want to be on the front foot when responding.
How can providers prepare?
- Prepare a trade union strategy: Decide how to respond to an approach by a union and the acceptable level of engagement. Clarify a negotiating strategy and develop a rapid response plan.
- Build a rapid response plan: Set out how requests will be escalated, assessed and answered within the statutory deadlines.
- Prepare draft access terms: Agree workable parameters for the location, frequency, timing, and method of access in advance of an approach by a union in order to be prepared to negotiate terms.
- Update employment contract: Add the right-to-join a union statement to employment contracts.
- Brief managers: Ensure those likely to receive an approach understand the process, what they can and cannot say, and the risks.
- Research: Conduct thorough research into the union and representative before entering into any agreements with them to ensure it will be a measured and constructive partnership.
- Negotiate: Do not accept access and recognition agreements as drafted by the unions. Review the terms carefully and take specialist advice before agreeing to anything.
How has your organisation prepared for the implementation of these reforms? Comment on this feature or join the conversation to share your thoughts.
James Sage is a Partner in the Health and Social Care team at RWK Goodman.
Email: [email protected] Linkedin @RWK-Goodman