Make Work Pay: recognition code of practice and e-balloting unfair practices consultation - Acas response

This is the Acas executive response to the Make Work Pay: recognition code of practice and e-balloting unfair practices consultation. 

Changes to the Code to reflect legislative amendments being made by the Employment Rights Act

Question 1. Do you have any comments about the changes to the Code to reflect the updated legal framework? You may wish to comment on whether the changes are clear, comprehensive, and practical to implement, or suggest areas that could be improved.

1. Acas (the Advisory, Conciliation and Arbitration Service) welcomes the opportunity to respond to the government's consultation on the revised Code of Practice during recognition and derecognition processes and on proposals on unfair practices in electronic ballots. Recognition was an issue in 21% of the disputes Acas collective conciliators handled in 2024/25 – 109 cases. In the last three years we have conciliated over 340 recognition disputes. It is the third most common matter at stake in collective disputes we handle, after pay and conditions. Acas therefore has direct experience of what matters in disputes over recognition.

    

2. We welcome the policy intent behind the Government's decision to reform the recognition/derecognition ('recognition' from now on) process and revision of the accompanying Code of Practice. OECD research states that well-functioning collective bargaining arrangements can have a positive impact on workplaces, the economy and the wider industrial relations landscape.

    

3. The Code has an essential role in equipping users with clear and accessible guidance on the updated legal framework and good practice. It will also set the tone for positive, voluntary dialogue and broader principles of good industrial relations: collaboration and partnership; balancing interests; proportionality.

    

4. By legal framework, we refer to:
   1. a ⁠simple majority required in recognition ballots (removing the previous 40% support threshold of all workers in the bargaining unit)
   2. removal of the likely majority test when a union submits a recognition application

   3. changes to the recognition process including extending the period covered by unfair practices regulations and lowering the threshold for a successful complaint, extending the access period, freezing the bargaining unit, and shortening the period for negotiations before the Central Arbitration Committee (CAC) makes a determination

       

5. We make the following recommendations to help ensure the Code reflects the legislative amendments:
   1. the Code should make obligations and expectations clear at the start and be consistent throughout
   2. guidance should include usable principles to explain vague phrases such as 'practical in the circumstances'
   3. users unfamiliar with collective bargaining should be able to understand and use the Code

Clear obligations and expectations

6. Acas recommends that the Code drafting should be clearer about how users should follow its good practice recommendations in order to comply with their legal duties. Making the link between legal underpinnings and practical guidance clearer will help avoid disputes and accidental non-compliance.

    

7. To that end, Acas recommends that the Code includes a section upfront explaining that the term 'must' denotes a legal requirement, while 'should' denotes a recommended step or expectation of reasonableness. As an example, the Preamble states that the Code will explain what constitutes a good access agreement. This section explains that the Code 'does not mandate' parties follow this but will 'encourage' compliance 'unless there is a good reason to the contrary'. These terms risk muddying parties' understanding of what they need to do to follow the Code.

    

8. Acas recommends that the Code make clear that parties 'should', rather than are 'encouraged' to follow the elements that constitute a good access agreement. Otherwise, users may not understand that terms such as 'encouraged' set a minimum standard which could have consequences if not met.

    

9. Where the Code notes that 'a good reason' may justify divergence, Acas recommends that the Code set out the principles that might underpin such a reason. Employers and unions are likely to have different ideas of what amounts to a good reason. The Code should help set common expectations.

    

10. Legal clarity in the Code is all the more important to reduce opportunities for litigation by well-resourced parties. The Code will be used at times of tense industrial relations, where one party may seek to point out the other's failings. The Code should encourage flexibility so that a party which takes a problem-solving approach is not disadvantaged compared to one that simply relies on the statutory process. Nevertheless, parties will disagree, so, clarity over obligations is essential to avoid escalation. 

Practical guidance on the statute

11. We are particularly concerned about recognition requests and decisions being legally challenged because of unclear language and guidance in the Code. For example, the current draft refers extensively to the applicable legislation and notes that 'breach of an access agreement can lead to orders made against the defaulting party'. However, there are many instances where the Code offers no practical guidance for parties on how to meet these obligations. To take just one paragraph (35), when addressing 'where or how' access takes place, the Code states:
    • parties should 'if possible' address this in the access agreement
    • unions should be granted access 'where practicable in the circumstances'
    • but 'each case will depend largely on the type of workplace'

    • it sums up the guidance as 'In other words, arrangements should reflect local circumstances and each case should be examined on the facts'

       

12. We recommend the Code offer factors relevant to whether something is 'possible' or 'practicable in the circumstances'. It should help parties understand what it means for an access agreement to 'reflect local circumstances' and what aspects of the 'type of workplace' access will 'depend largely on'. It should go beyond simply pointing out that each case has its own facts and help parties weigh and evaluate the importance of the material situation.

     

13. Acas recommends that DBT develop applicable principles to highlight common factors that should be taken into account to help the parties reach common ground – e.g. operational complexity, the availability of space, cover arrangements. This then allows the Code to state what the parties should consider to decide what is possible or practicable.

     

14. For example, a legitimate consideration as to the location and means of access would be if an employer has a large percentage of employees with hybrid working arrangements who spend the majority of their time working from home. The Code could use this kind of common scenario to offer guidance and principles for users to apply to other situations.

     

15. For the above scenario the Code could spell out that:
    • a pragmatic, problem-solving approach is essential to resolving issues around the location and means of access
    • this approach is to ensure that the right of access is enabled, not undermined
    • digital and in-person access arrangements can be made to meet the needs of the workforce
    • if the employer and union agree that it would be more beneficial and practical to hold surgeries and meetings in-person, then:
      • employers should be as flexible as operational considerations allow to encourage employees to attend meetings in-person
      • the union and employer should work together to minimise any impact on operations, while enabling full participation

      • no employee should suffer detriment for attending or not attending in-person meetings outside of their usual working pattern

         

16. Acas believes that the above approach would offer more practical guidelines and clearer parameters for users than the approach currently taken in many parts of the Code and in paragraph 35 in particular.

Help new users navigate the process

17. The simplification of the recognition process is likely to bring employers who have no experience of trade unions into contact with them. As some employers may be anxious about working with a union regarding recognition and access for the first time, the Code can give them confidence if it is based on clear principles and practical guidance, rooted in the realities of modern workplaces.

     

18. To aid wider understanding, Acas recommends that the Code reiterates the principles of good industrial relations - collaboration and partnership; balancing interests; proportionality - and includes a positive statement that frames the purpose of the legal changes brought in by the Employment Rights Act 2025 (ERA). This statement should identify the benefits of trade unions and value of collective bargaining to workplace relations and business performance. The language used at the bottom of page 5 of the accompanying consultation document is a good example of the kind of statement that could be included in the Code.

     

19. One change that Acas believes would significantly improve the accessibility and legal underpinning of the Code would be to reduce the extensive use of italics to denote specific legislation. In addition to accessibility considerations, especially for non-experts and vulnerable groups, Acas believes legal clarity can be increased by avoiding long passages of legal wording. The Code's role is to explain how to comply with the law, not simply to restate it unless that is unavoidable.

     

20. DBT should also identify and straighten out any overlapping terminology relating to:
    1. the general right of access to workplaces for trade unions (outside the recognition period), and
    2. rights to time off for workers and representatives unconnected to recognition.

Changes to the structure of the Code to reflect changes being made by the Employment Rights Act

Question 2: How well do the structural changes to the Code reflect the changes being made by the Employment Rights Act?

21. Acas broadly agrees with the changes the Government has undertaken to structure the revised Code. Acas notes that legal provisions concerning trade union access and unfair practices during recognition applications now activate much earlier in the overall process. Ensuring there is a logical flow to the information, especially where describing a detailed procedure such as recognition, will help support parties' understanding of the steps and behaviours required by both the law and the Code. The new timelines are vital for users to understand and DBT should test these with users to ensure the timelines are easy to follow.

     

22. How the Code frames these changes will be important to its overall efficacy. Acas recommends that the core industrial relations objectives and principles at the heart of the Code  - collaboration and partnership, balancing interests, and proportionality - need to be strengthened and should be set out from the beginning and in key sections.

     

23. We make the following recommendations (outlined in more detail below) to help ensure the Code distils key principles that can help guide all parties towards good practice:
    1. clarify the purpose of new rights and responsibilities
    2. promote voluntary resolution over statutory
    3. encourage mutual flexibility and information sharing
    4. educate new Code users

Clarify the purpose of new rights and responsibilities

24. Acas recommends that the policy rationale for the process, including government ambitions to strengthen industrial relations and extend collective bargaining coverage, is included in Section A of the Code.

     

25. Given the widely acknowledged decline in the skills, knowledge and confidence required to underpin effective collective relationships at work, we recommend framing regulatory reforms within broader principles of good industrial relations:
    • Collaboration and partnership – businesses, workers and unions treating each other with mutual respect - as negotiating partners rather than adversaries.
    • Balancing interests – promoting a culture of mutual accountability, carefully balancing the interests of workers, employers and the public together to deliver the prize of economic growth, improved productivity and better working lives.

    • Proportionality – trade unions, employers and workers using formal action only as a last resort, to maintain proportionality with the harm it aims to rectify. Acas knows that disputes can be resolved before they escalate where mutual trust is built in a workplace.

       

26. Different sections of the Code can distill important employment relations principles that reflect changes resulting from ERA. Section C - (Preparing for access and establishing an access agreement) - for example, offers an opportunity to emphasise that:
    • the streamlined recognition process represents a stronger right for trade unions that assumes recognition (and access during the period) will be granted in normal circumstances
    • practical considerations should govern how, where and when access is granted, but not whether it is granted
    • when access in the recognition period is agreed it should be meaningful, regular, and may be both physical and virtual
    • this assumption is balanced with an onus on trade unions to work positively with employers to achieve this end goal

Promote voluntary resolution over statutory

27. The overarching principle that we recommend should frame the Code as whole is that parties seek negotiated, voluntary agreements, exhausting all options before CAC intervention or enforcement. Spelling out this principle requires acknowledging that conflict and differing interests can be a natural part of the recognition process but do not mean that disputes are inevitable. Carefully and realistically framing the revised code as a positive challenge for employers and unions is therefore essential.

     

28. The Code should not assume familiarity with the opportunities, challenges and ways of working that underpin social partnership. Acas research on 'Continuity and change in collective workplace conflict in Britain' finds that the skills, knowledge and confidence that underpin effective industrial relations have diminished in recent years.

     

29. In addition to the three core principles of good industrial relations set out in paragraph 3, Acas recommends that DBT outline behaviours that would generally be regarded as reasonable to promote voluntary resolution. These should give a basis for mutual trust and shared responsibility for problem solving between parties. These might include:
    • building trust and mutual respect for each other's roles and responsibilities, while respecting areas of difference
    • operating with openness, honesty and transparency
    • ensuring leaders on both sides show up so that the right people are in the room, demonstrating how to work together, innovate and solve problems
    • committing to early discussion of emerging issues and to maintain dialogue on policy and priorities
    • respecting confidentiality and external positions where necessary
    • making the best use of scarce resources

Encourage mutual flexibility and information sharing

30. Acas recommends that mutual information sharing should be emphasised in relevant sections of the Code as an essential aspect of maintaining positive relations between the parties. Developing a culture of sharing information and respecting commercial confidentiality will not only help employers and unions but will also help the CAC and, potentially, Acas support the parties and make decisions by explaining the rationale behind their actions.

     

31. We highly recommend that DBT encourage all parties to take a positive problem-solving approach throughout the final Code. When highlighting operational needs such as customer service, security or health and safety, we recommend that the Code identifies such scenarios as complex issues to be negotiated rather than unavoidable obstructions to access. This principle also applies to arranging access in multi-site, shift or hybrid workplaces, where unions and employers should work together to find answers to these practical questions.

     

32. Encouraging good practice in these scenarios will be particularly important to help the CAC decide whether the terms of any given access agreement have been followed. Being able to evidence good practice will also be beneficial to employers and unions in their submissions to the CAC.

Educate new Code users

33. Acas recommends that the Code include a glossary of important and regularly used terms and concepts that may be difficult to explain in plain English in the main body of the Code. This will help those who are new to working with trade unions or have no experience of the recognition process. Alternatively, key terms should be explained when they are first referred to in the Code. For example, the term 'Suitable Independent Person' is used for the first time on page 10 of the Code, but the duties of that role not fully defined until the final page of the Code.

Other changes to the Code not directly related to the Employment Rights Act

Question 5: Do you think the updates to the Code appropriately reflect the increased use of digital communication in workplaces?

Acas response: No

34. Acas welcomes the focus on digital access as a key development from the original Code of Practice. Clear guidance on digital access will be particularly important due to the expected increase in requests. Digital access has a key role to play in employers and unions negotiating flexible and bespoke voluntary agreements that complement purely physical access.

     

35. However, we strongly recommend DBT produce much more in-depth guidance in this area. It is essential that clear guidance to Code users is given which reflects the realities of modern workplaces but also accounts for the speed at which digital platforms and methods are evolving.

     

36. We make the following recommendations to help ensure the Code allows parties to reap the benefits of digital access whilst also mitigating unfair practices:
    1. acknowledge the scope of unfair digital practices
    2. deepen guidance to mitigate digital unfair practices

Acknowledge the scope of unfair digital practices

37. While the potential benefits of digital access are clear and are addressed in the draft code, we recommend that the scope for unfair digital practices should be addressed in far more detail in the final Code. For example, the draft Code briefly refers to 'privacy and cybersecurity' risks (paragraph 37), potential for monitoring and eavesdropping (paragraph 48), but risks associated with digital access are not mentioned at all in Section F – Responsible campaigning and unfair practices.

     

38. The Code should recognise the potential for online activity, particularly on social media, to intimidate and threaten staff. The Code should provide plain English guidance on appropriate and inappropriate use of social media, drawing on the principles of partnership, balancing interests, and proportionality.

     

39. The revised Code should include clear expectations and considerations around privacy of access meetings that take place on a digital platform. In paragraph 48, while the expectation that 'The employer should not eavesdrop or monitor digital access meetings' is clear, more detail could be included to give this more weight.

Deepen guidance to mitigate digital unfair practices

40. Acas recommends that DBT assess in more depth how to mitigate risks of digital unfair practices undermining responsible campaigning, around social media, artificial intelligence, deepfake technology, and other methods used by direct or third parties.

     

41. Factors the parties should consider should be listed, given that digital access is a new and evolving practice for experienced trade unions as well as inexperienced employers. It should not be assumed that Code users will be well informed about the risks or benefits of digital communications. This is particularly important to consider given the high stakes that can be associated with recognition. For example, cybersecurity is identified as a risk, but why and, more importantly, how it can be a risk is not explained.

     

42. Further, the speed with which digital benefits and risks are evolving make the potential for unintentional non-compliance a major concern. We believe the Code needs to be informed by those with digital expertise and with experience of digital campaigning whilst keeping in mind that advice should be accessible to non-experts. Acas acknowledges that this is a difficult balance to find, but also believes that it is a significant gap that needs to be addressed to allow Code users to fully appreciate the risks and benefits of digital access and minimise disputes.

Question 6: Do you think the role of the CAC in resolving disputes is adequately explained in the Code? Please explain your answer.

Acas response: Yes

43. Overall, Acas believes that the role of the CAC in resolving disputes is explained well in the draft Code. However, we recommend that the Code should include more guidance on how users should behave to avoid the CAC being unduly burdened with cases that could otherwise be solved between parties. Acas is concerned that parties may defer to the CAC too readily if guidance is not clear enough to reach an agreement voluntarily, potentially increasing pressure on the CAC unnecessarily and missing opportunities to reach beneficial voluntary agreements.

     

44. One area that Acas recommends greater clarity in is the extent to which the CAC refers to the Code in its decisions. For example, paragraph 29, with reference to resolving differences about agreeing access arrangements, notes that when deciding how the union can communicate with workers, the CAC will 'normally take into account' the Code.

     

45. In this example, the use of 'normally' does not give Code users clarity about this vital part of the recognition process. Whilst it may be the case that this is an accurate description of the CAC's decision-making process, the Code should establish factors that could lead to the CAC not taking the content of the Code into account.

     

46. Another example is in paragraph 34 which states that 'the number of union representatives entitled to access should be proportionate to the scale and nature of the activities or events organised within the agreed access programme'.

     

47. Acas acknowledges that this is precisely the kind of detail that should be negotiated between a union and employer in an access agreement. However, guidance should be provided to give the principle of proportionality a clearer basis, particularly in relation to CAC decisions. For example, it should be clarified whether and how the CAC would come to a decision on what is 'proportionate' in the above scenario. Without clearer guidelines, Acas is concerned that this part of the recognition process could be open to unnecessary disputes.

     

48. Given how numerous the circumstances and factors are that need to be considered by the CAC when making a decision, Acas acknowledges that extensive technical detail may be inappropriate for a Code of Practice and instead better suit non-statutory guidance or the CAC's own materials.

Question 7: Do you think that the Code includes sufficient information in relation to Section D of the Code which covers the elements in an access agreement?

Acas response: No

49.  Section D of the Code is by far the most important in the overall recognition process and is likely to be the section that is referred to most often by Code users, including the CAC. It therefore needs to stand up to intense scrutiny, including from legal experts employed in high profile recognition cases. The impact of Section D will not simply be due there being enough information, but whether that information equates to clear guidance.

     

50. We recommend that the first step towards this should be to emphasise from the very start of the section that union access in the recognition period is the norm, and that employers and unions should work together to achieve this. Whilst it is undoubtedly important for trade unions to consider each employer's unique circumstances, the Code should be far clearer that access is a positive right for trade unions. The onus is on trade unions and employers to work together to put that into practice.

     

51. In addition to infusing essential principles into this part of the Code, Acas believes there is significant work to be done to make Section D clearer and more accessible. We make the following recommendations to improve Section D so that it covers the elements of a good access agreement and gives Code users a clearer set of guidelines.
    1. refer to common examples rather than exceptional circumstances
    2. improve guidance for small employers

Refer to common examples rather than exceptional circumstances

52. Acas recommends that when citing examples to explain parts of the access process, the Code refers to common examples rather than exceptional circumstances. Section D could be more positively and helpfully framed to cite widely applicable scenarios and how they can be overcome through collaboration and creativity.

     

53. Acas believes that the use of exceptional examples can unintentionally 'guide' readers towards extrapolating unhelpful principles from them to use in their own circumstances. Examples should be used to highlight good practice or minimum standards (i.e. where it is not acceptable to resist or undermine access or demand compliance from an employer, and where a problem-solving, collaborative approach can mitigate obstacles).

     

54. Further, Acas is concerned that highlighting exceptional circumstances could contribute to undermining the overall policy intent of giving workers a meaningful right to organise.

     

55. An example of a paragraph that, in Acas's view, does not help guide Code users in a constructive manner, is paragraph 42 regarding time off for workers to conduct surgeries. In this case, the example used negatively frames the issue. Instead of highlighting exceptional circumstances that could undermine the core principle of unions having a meaningful right to organise – i.e. what may be a 'reasonable' circumstance in which an employer could refuse time off to conduct a surgery – this could be reversed. In this instance, it would mean pointing to examples when it would be unreasonable for an employer to refuse time off.

Improve guidance for small employers

56. Based on the above, Acas believes that there should be more consideration of Code users who may be new to working with trade unions to make it more user-friendly. According to the CAC's 2024 to 2025 Annual Report, around two in five statutory recognition applications are in organisations with fewer than 200 employees, where experience and capacity for collective employment relations are more likely to be limited. We also expect that some small and medium-sized enterprises (SMEs) will be navigating this legislation and engaging unions for the first time.

     

57. We welcome the Code dedicating a section to small businesses emphasising that 'Access arrangements for small businesses need not necessarily create difficulties'. However, we are concerned that the lack of clarity and accessibility in the Code could disproportionately impact employers with limited experience of working with trade unions.

     

58. Acas strongly recommends that DBT user test the Code with not only large but also SMEs to ensure it is fit for purpose and sets proportionate expectations. This consideration is especially important given the high stakes during the access period when any delay could affect the outcome.

     

59. The Code should also advise parties to use support available, particularly Acas's collective conciliation service.

Question 9: Are there any areas or topics of the Code of Practice which relate to access that you think would benefit from further guidance?

Acas response: Yes

60. Acas recommends that DBT expand its guidance on mitigating known points of tension relating to access during the recognition process. It is also essential that such guidance acknowledges the context in which access will likely be taking place – one that may involve intrinsic power imbalances between employers and workers or their unions.

     

61. Acas's collective conciliators report that the following aspects of the current statutory process are especially prone to conflict:
    • agreement to an access arrangement in the first instance, as well as components including the number and duration of meetings, and the extent and methods of communication with workers
    • tension between an employer's operational needs and facilitating opportunities for and equity of engagement for workers
    • relevant managers' knowledge of the agreed access arrangements, including permission for workers to attend meetings
    • scheduling and format of employer or union-organised 'surgeries' giving rise to perceptions or allegations of undue pressure on workers

Question 10: Are there any areas or topics of the Code of Practice which relate to unfair practices that you think would benefit from further guidance?

Acas response: Yes

62. Acas recommends that guidance on campaigning acknowledges that workers have a legal right to organise themselves in a trade union. The employers campaigning should therefore avoid questioning the legitimacy of the attempt. The employer may wish to inform workers' decisions by providing relevant and evidence-based information about the practicalities of union recognition. But the Code should be clear that it would be wrong to question the recognition request itself, in the same way an employer would not challenge an individual's request for trade union accompaniment.

     

63. Acas also recommends that the Code clarify behavioural expectations around unfair practices and balloting. We note that trade unions may legitimately encourage workers to vote in ballots and often conduct such campaigns as part of their normal balloting activities – e.g. for industrial action ballots.

     

64. We recommend that the Code identify the difference between social partners asking an employee whether they have voted in a recognition ballot and how they have voted (i.e. if they have voted for or against, which could rightly constitute an unfair practice). Naturally, it should also be made clear that while it is legitimate to ask an employee whether they have or intend to vote in a recognition ballot, their right to share, or refuse to share, that information is respected with no detriments suffered either way.

     

65. Relatedly, Acas recommends that the Code address employers' ability to structurally impact whether employees vote as a potential unfair practice (which is not an ability the trade union would generally have). For example, an employer having control over rotas and shift patterns leaves could potentially result in employees being less engaged in the recognition process by being unable to attend surgeries or, if the recognition ballot is held in-person, being unable to vote.

     

66. Clarifying these issues and offering clear guidance in the Code would help mitigate them becoming points of contention and dispute. Ultimately, the revised recognition process will result in better, more embedded outcomes if the final ballot accurately represents the feelings of the workforce, irrespective of whether the vote is for or against recognition.