There have been four important consultation papers launched concerning the implementation of provisions in the Employment Rights Bill.
Trade union access rights: Consultation
The Employment Rights Bill will introduce a new framework for trade unions to access workplaces physically, and to communicate with workers in person or digitally. The consultation includes details on how unions should make the request for access and how employers will be expected to respond.
It is also requesting views on the factors that the Central Arbitration Committee (CAC) should take into account when determining whether access should be granted and on what terms as well as what sanctions it might impose on employers who breach agreements.
Responses to the consultation may be made up until 18 December 2025.
The proposal introducing a statutory right to access the workplace is a big step in bringing union representation into more workplaces. The proposed mechanics around the new right are that the union makes a request in writing, setting out the number of members it already has in the workplace and clarifying for which group of workers access is sought, the purpose of the access, when it should take place and the frequency of any further access.
It is proposed that the employer must respond within five working days and a negotiation period of 15 working days should provide an opportunity to agree access arrangements.
The CAC will play a significant role in the new access arrangements so that if access is not agreed, the union will have 25 working days from the date of the access request to make a referral to the CAC. The CAC should, in any event, be told about any access agreement and given notice of any subsequent variation.
“Model agreements” will be formulated and when used it is likely to be considered a reasonable request. In relation to frequency of access it is proposed that weekly access would be reasonable and that a two-day notice period should be given for access.
Where access agreements are imposed, they will be for a two-year fixed period.
Where the employer breaches the access agreement, the union may report this to the CAC which will have the power to order that party to take steps to comply or vary the terms of the agreement. If the breach is repeated within 12 months, the CAC will have the power to impose a fine of up to £75,000. This will rise to £150,000 if there are further breaches.
Factors that it is proposed the CAC should take into account include the gravity and duration of the failure, the number of workers affected and the size of the organisation.
Smaller employers may be relieved to find that it is proposed that businesses with fewer than 21 workers will be excluded from the new access rights and that those employers that already recognise a union can expect that the CAC will refuse the access request.
Employers have until October 2026 to prepare as that is the planned implementation date.
Trade union membership rights
It has been conjectured that one of the reasons for the UK having such a low proportion of workers being trade union members might be that they are unaware of their right to join a union. The Employment Rights Bill seeks to address this by introducing a requirement that employers inform their workers that they have a right to join a trade union, either when they start a job or afterwards.
It has become clear that this will be more than a requirement for an extra few lines in the compulsory written particulars of employment.
The consultation is asking for views on the manner and extent of the information that should be given to the worker which it is proposed might include an overview of the functions of a trade union and a summary of the statutory rights in relation to union membership.
In relation to the practicality of signing up to membership, it’s suggested that the new employee be given a list of the trade unions that the employer recognises or, if there are none, be guided to a GOV.UK page with a list of trade unions.
This might be quite a lot for an employer to draft and present to each new employee and it is suggested in the consultation that the preferred option may be for the information to be provided through a standard government drafted statement with the employer just filling in the blanks where required.
The consultation seeks views on how the statement should be delivered to new and existing workers and what further reminders may be necessary.
Direct delivery by email or letter would appear to be the preferred option, particularly at the start of employment. Indirect means, which might include posting the statement on a notice board, staff portal or intranet, is another option, although this might be more commonly used in relation to compliance with the obligation to provide reminders to staff.
The frequency of the reminder is proposed to be every 12 months, although views are sought.
The consultation is also due to close on 18 December 2025.
Enhanced pregnancy dismissal protection consultation
The Government is introducing legislation which will make it unlawful to dismiss pregnant women, employees on maternity leave, and those who return to work for at least a six-month period after their return – except in specific circumstances.
The consultation is seeking views on enhancing dismissal protections for pregnant women and new mothers, including the specific circumstances in which the dismissal of pregnant women and new mothers should still be allowed; when the protections should start and end; and whether other new parents should be covered by the protections.
The consultation seeks responses up until 15 January 2026.
An employee who has notified their employer of their pregnancy already has a number of statutory protections. Most notably in a redundancy situation she has the right to be offered any suitable alternative vacancy in preference to others also to be made redundant. This enhanced protection continues for 18 months after childbirth, so it will extend to the period immediately after the return to work too.
The proposals to further enhance job security include the removal of some of the potentially fair reasons for dismissal for this description of employee or applying a stricter test of fairness.
The removal of conduct, capability, redundancy, breach of statutory restriction or Some Other Substantial Reason (SOSR) as potential fair reasons for dismissal is a controversial proposal and would face considerable difficulties. It would not seem possible that breach of a statutory restriction would be removed. Would conduct be narrowed to gross misconduct?
The stricter test suggested might mean the employer has to show that continued employment would cause a significantly detrimental effect on the business; pose a health and safety risk to customers, staff, or the public; or have a serious negative impact on the wellbeing of others. Again, this would be difficult in practice.
The enhanced protection may also be extended to other types of family leave in the same way that these employees also currently qualify for preference in a redundancy situation.
The consultation recognises that these proposed changes create a risk that women of childbearing age may find it more difficult to find work as employers might seek to avoid the further restrictions. Furthermore, it might create some resentment in the workplace should others feel unfairness in relation to the differences in treatment. It is proposed that there might be a short qualifying period of between three and nine months for these enhanced protections. Views are sought on further measures that may be taken to avoid the potential adverse consequences.
It is, however, inevitable that employers will have to grapple with complex rules around unfair dismissal rights, particularly when these proposed changes are planned for the same period that the proposed day-one rights for unfair dismissal and statutory probation periods are also planned to be introduced.
Bereavement leave and pregnancy loss consultation
The Employment Rights Bill introduced a new day-one right to unpaid bereavement leave for employees who experience the loss of a loved one, including pregnancy loss before 24 weeks.
This consultation seeks views on eligibility criteria and the types of pregnancy loss in scope.
It is also asking for comments on when and how bereavement leave can be taken and the practical issue of what notice and evidence requirements an employer can expect from the employee.
This consultation also closes on 15 January 2026.