Negotiating access

4. Negotiating access

An employer might not accept an access agreement in full. In this case, they have 25 working days to negotiate with the trade union.

The trade union and employer should work together to agree access arrangements. It's a good idea to choose one lead negotiator for each party. If more than one trade union is involved, each trade union should appoint a lead negotiator.

If no party has told Acas that they are negotiating access, it's a good idea to do this now. This means that Acas can offer collective conciliation if there's a disagreement.

The access request should start the discussion. If employers have legitimate concerns, both sides should work together to find solutions.

If access is agreed

If all parties agree access arrangements during the negotiation period, they should:

• tell the Central Arbitration Committee (CAC) together using the notification template on GOV.UK and send it to access@cac.gov.uk
• include a copy of the agreement signed by representatives of all parties

If access is not agreed

If access arrangements are not agreed after 25 working days of negotiations:

• the parties can agree to restart the process
• any party is free to apply to the Central Arbitration Committee

They must tell the Central Arbitration Committee within 55 working days of the original access request. The Central Arbitration Committee might extend the time limit to 70 working days. This might happen if it was not practical to tell them within the usual time.

The Central Arbitration Committee will review the facts of the case and decide the terms that let the access take place. In exceptional circumstances, they may decide whether access should be given.

The Central Arbitration Committee will refuse requests for access where the employer has less than 21 workers.

How the Central Arbitration Committee handles access cases

The Code of Practice on the right of trade unions to access workplaces (PDF, 522KB) sets out some 'model terms' for an access agreement. These are terms which are considered reasonable and practical in many cases. 

The Central Arbitration Committee uses these terms to decide whether a case is simple or complex. A simple case will usually be quicker to resolve. This is because it can be decided by a single-person panel at the Central Arbitration Committee.

The model terms

The model terms set out circumstances in which the Central Arbitration Committee is more likely to grant access. They include:

• weekly access, or less often if the trade union prefers
• at least 5 working days' notice for the first access visit
• at least 2 working days' notice for visits after the first visit
• reasonable use of the employer's existing accommodation facilities
• privacy for communications between workers and the trade union, where reasonably possible
• trade union officials following reasonable employer processes, including showing identification

Weekly access means giving a trade union an opportunity to meet or engage with workers each week.

Weekly access:

• can vary to reflect shifts or be averaged over a longer period if the parties agree
• does not have to happen at the same time or on the same day each week

The Code of Practice on the right of trade unions to access workplaces (PDF, 522KB) gives examples of what does and does not count as weekly access.

Problems after an agreement has started

Problems after an agreement has been made could include:

• either party feeling the agreement is not working as intended
• either party breaching the terms of the agreement
• circumstances changing that mean the agreement no longer works

Most problems are easier to resolve when they are raised early. Both parties should work together to find a solution before complaining to the Central Arbitration Committee.

When trying to resolve problems with an access agreement, it's a good idea to:

• tell the other party about the problem in writing, such as in a letter or email
• refer to the relevant wording in the agreement
• explain the impact of the problem
• be factual and avoid personal criticism
• share relevant evidence of the problem
• suggest a reasonable resolution, such as adjusted arrangements, or a temporary trial of adjusted arrangements

Acas can offer collective conciliation to help resolve problems with access agreements.

Complaining to the Central Arbitration Committee about an existing access agreement

A trade union or employer can complain to the Central Arbitration Committee about an existing access agreement if:

• one party breaches the agreement
• a party prevents agreed access

The complaint should be made by email within 3 months of the alleged breach.

The Central Arbitration Committee can:

• declare that an agreement has been breached
• order steps to be taken to resolve the problem
• alter the agreement
• impose financial penalties in specific circumstances

When deciding the penalty, the Central Arbitration Committee will look at the individual circumstances. They will consider things like the party causing the breach and how serious the breach has been.

The penalties can be

• up to £75,000 for a first penalty order
• up to £150,000 for a second penalty order 
• up to £500,000 for a third and subsequent penalty order under the same agreement

There is no limit to how many penalty orders can be given. Separate breaches can lead to separate penalties. Breaches in different workplaces covered by the same agreement can also count as separate breaches with separate penalties.

Reviewing, renewing or amending an agreement

An access agreement can last up to 2 years. It can be extended if both parties want it to.

Both parties should agree:

• when the agreement will be reviewed
• what should happen if either party wants to amend the agreement

One party cannot amend or withdraw from an agreement on their own. Any extension, change or withdrawal should be agreed by both parties. They should then let the CAC know what has changed. They should do this using the access agreement variation or revocation form template on GOV.UK.

When an agreement should be reviewed

It's a good idea to review an access agreement when:

• the agreement is close to ending
• a work location moves or is closed
• there's a major change for workers, such as a change to working hours or other terms and conditions
• there's a new IT platform or infrastructure
• the security risk changes
• there is practical difficulties with access over time

Get more advice and support

It's a good idea to tell Acas about an access request as early as possible. This means that Acas can:

• provide advice and assistance to all parties on access negotiations
• offer collective conciliation more quickly when there's a problem

Find out more about collective conciliation services from Acas