In brief
- From 30 October 2026, unions get a statutory right to access workplaces, and equality reps get a statutory right to paid time off.
- Both changes mean more casework, in workplaces that have never had a union presence.
- Somewhere between 15 and 20% of people are neurodivergent, and in casework it almost always shows up as something else: a capability process, a conduct case, a grievance about a difficult manager.
Almost everything written about the Employment Rights Act 2025 has been aimed at employers. That makes sense, because they carry the new duties. But the changes coming on 30 October will land just as heavily on unions, and the part that will most affect the daily work of representing members has barely been mentioned anywhere.
This article covers what changes, why it means more casework, and what reps need to know about neurodiversity to handle that casework well. It is general information rather than legal advice. Some of the detail depends on regulations and a Code of Practice, so check the final position before relying on it.
What changes for trade unions on 30 October 2026
Start with where things stand today, because that is what makes the change so big.
Right now, unions have no general right to enter a workplace. Access depends on the employer agreeing to it. So organising somewhere without a recognition agreement happens at the gates, in the car park, or online in people’s own time. If the employer says no, that is the end of it.
Three parts of the Act change that.
A right of access. Independent unions will be able to request access to a workplace to meet, support, represent, recruit and organise workers. Access can be physical or digital, so it includes reaching people through an employer’s intranet. The union asks, the two sides negotiate an access agreement, and if they cannot agree, the Central Arbitration Committee decides. There are fines for breaching an agreement. The right covers everyone in the workplace, not just members, although the CAC will not grant access to workplaces with fewer than 21 workers.
Facilities for reps. Reps get a right to reasonable facilities to do their duties. That solves an old practical problem, which is having nowhere private to meet a member. The Act uses the phrase “reasonable accommodation and facilities” here. Accommodation in that phrase means physical space. It is not the same as a reasonable adjustment for a disabled worker, which comes up later and means something else entirely.
Paid time off for equality reps. Union equality representatives get a statutory right to paid time off for the first time. This is the one nobody is talking about, and it is the one that will change the quality of representation most.
Other parts of the Act are being phased in around this, and from October employers also have to tell workers in writing that they can join a union. Put together, that means more workplaces with a union presence, many for the first time, and more workers who know representation is there.
Why this means more casework, not just more members
The obvious effect of a right of access is on recruitment. The effect reps will feel first is on casework.
People join a union when they need one. Something has gone wrong, or they can see that it might. So putting reps in front of workers who have never been approached before does not just produce members. It produces members with live problems.
And it produces them in the hardest possible setting. Nobody has had structured access to that employer before. There are no relationships with HR. There is no experienced rep down the corridor to hand a difficult case to.
The first cases in a newly organised workplace are rarely simple pay queries either. They are the disciplinaries, the capability processes and the grievances people have been sitting on for months because there was nobody to take them to.
Many of those cases will involve disabled members. Neurodivergent members will be among the most common, and the easiest to miss.
What neurodiversity means in a representation context
Neurodiversity describes the natural variation in how people’s brains work. In casework it usually means autism, ADHD, dyslexia, dyspraxia, dyscalculia or Tourette’s, often more than one at once. Estimates put neurodivergent people at somewhere between 15 and 20% of the population, which makes this one of the largest groups a rep will ever represent. Our guide to neurodiversity in the workplace covers the basics.
It varies enormously from person to person. Two neurodivergent members with the same diagnosis can need completely different things, so a standard package of support rarely works.
It also often counts as a disability in law. Under the Equality Act 2010, someone is disabled if they have a physical or mental impairment that has a substantial and long term adverse effect on their ability to do normal day to day activities. Many neurodivergent people meet that test, which brings protection from discrimination and the employer’s duty to make reasonable adjustments.
Two things there are worth remembering. Nobody needs a diagnosis to be disabled under the Act. And in Stedman v Haven Leisure in 2025, the Employment Appeal Tribunal confirmed there is no balancing exercise between what a person can and cannot do. If one normal activity is substantially affected, that is enough. Coping well elsewhere does not cancel it out. Hempsons has a useful summary of the Stedman judgment, and we looked at what it means for employers in our piece on ADHD, autism and the legal definition of disability.
The last thing is the one that catches reps out. Much of this is invisible, and stays invisible on purpose. Masking is the constant effort of hiding neurodivergent traits to fit in at work: hiding sensory discomfort, rehearsing conversations, working out unwritten rules that colleagues absorb without noticing. CIPD research found 45% of neurodivergent employees always or often feel exhausted at work, compared with 30% of neurotypical colleagues. Masking only works while nobody notices it, which is why the first visible sign of a problem is often the formal process itself.
Why the equality rep change matters most
Now put that next to the new right to paid time off.
Time off turns the equality rep from a role squeezed around a day job into one with protected hours behind it. More workplaces will have someone whose job is equality casework. Members will be able to see who that person is, which brings forward cases that would otherwise never have been raised.
Disability will be the biggest part of that casework. Employment tribunal cases citing neurodiversity rose from 265 in 2020 to 517 in 2025, with autism and ADHD the most cited conditions. Employers have not suddenly turned hostile. The rise reflects more awareness, far more adult diagnoses, and a lot of processes designed without these employees in mind.
Where neurodiversity shows up in union casework
The problem for reps is that it almost never announces itself. We have written more about how neurodiversity shows up at work, often in ways that look like something else.
It rarely arrives as a member saying “I’m autistic and I need support”. It arrives as a capability process about missed deadlines. Or a conduct case about the tone of an email. Or a grievance about a manager who calls the member difficult. Or a sickness review after a period of burnout.
Underneath a lot of those is an adjustment that was needed and never made. Or made and never actioned. Or agreed eighteen months ago by a manager who has since left.
People also do not tell their employers. The same CIPD research found around a third of neurodivergent employees have not disclosed their neurodivergence, and only 37% think their employer offers meaningful support. Some consider it private. Many expect assumptions to be made about their competence. So the member in front of a rep may have no diagnosis, may never use the word, and may not have linked the process they are facing to how their brain works. Representation that waits for disclosure will miss most of the people it could help. That is a point we make to employers too, in why many of your neurodivergent employees have not told you.
Two legal points make this workable in practice.
The first is knowledge. The duty to make reasonable adjustments depends on the employer knowing about the disability, but that includes what they ought reasonably to have known. An employer who watched a capable employee unravel, or received an occupational health report, or was told plainly that noise and unclear instructions were getting in someone’s way, cannot always rely on never having been given a label.
The second is discrimination arising from disability. This covers unfavourable treatment because of something that arises from a disability, rather than the disability itself, unless the employer can justify it. That is usually the right fit for a capability or conduct case, because employers are rarely acting on the disability. They are acting on the lateness, the missed steps, the bluntness or the absence, all of which may arise from it.
How to represent a neurodivergent member well
None of this asks a rep to be a clinician, and nobody should be diagnosing anyone. It is far more practical than that.
Ask about the process before defending the conduct
Was the member given notice of the meeting, or called in that morning? Were the allegations put in writing, or delivered out loud in a room? Did they get a chance to prepare, or were they expected to answer on the spot?
Someone who needs processing time may be unable to give their own account in those conditions. Plenty will agree to things they do not mean just to end the conversation. Raise it at the start, not at appeal.
Look for the paper trail that stops
Occupational health reports nobody acted on. Adjustments agreed and never put in place. A referral made and then forgotten.
A lot of cases turn on this, because the employer’s own documents prove both knowledge and failure. Tribunals take this seriously. In Moore v Greene King, a tribunal found the employer had failed to make low cost adjustments for a dyslexic chef, including a wireless headset that occupational health had recommended.
Separate the effect from the behaviour
Lateness, blunt emails, missed steps in a process, difficulty with unwritten expectations, finding unstructured meetings hard going. All of these can arise from an impairment.
That does not excuse everything, and it is not an argument that conduct never matters. It is an argument about what a fair process should have taken into account, and often the employer has taken none of it into account.
Push for specific adjustments, not generic ones
Noise cancelling headphones and flexible hours are the standard offer in most workplaces, and for many people they change nothing.
What helps is usually specific, and a proper workplace needs assessment is often the quickest way to pin it down. Written instructions instead of verbal ones. Questions sent before a meeting. One named contact instead of a rota. Deadlines set when work is handed over rather than left to be assumed. Specific adjustments work better, and they are far easier to enforce when they are not delivered.
Get it in writing, with a name and a date
What was agreed, who owns it, by when, and when it gets reviewed.
This is the dullest item here and probably the most useful, because it turns an intention into evidence. Very few adjustment failures start as refusals. Far more are things that were genuinely agreed and then quietly did not happen.
Adapt how you represent, as well as what you argue
Written summaries after conversations. Clear signposting of what happens next. Checking understanding rather than assuming it.
A member masking their way through a stressful process may nod at everything and remember almost none of it, then be shocked later by what they apparently agreed to.
Neurodiversity training for union reps: questions to ask before October
For union leaders and education officers, a few questions tend to show where the gaps are.
Do our reps know what a reasonable adjustment is in enough detail to argue for a specific one? Would a rep spot a capability case that is really an adjustment failure? Does our equality rep training cover neurodivergence properly, or does it sit inside a general disability module written years ago? And when a member discloses something, does the rep know what to do next?
Most unions have not worked through these questions, which says nothing about their commitment. Rep education has had other priorities. October is a good moment to look at it.
Frequently asked questions
When does the trade union right of access come into force? 30 October 2026. Some of the detail sits in regulations and a Code of Practice, so it is worth checking the final guidance before relying on it.
What is a union equality representative? A workplace rep whose remit covers equality, diversity and inclusion, including disability and neurodiversity casework. From October 2026 the role carries a statutory right to paid time off.
Is neurodivergence a disability under the Equality Act 2010? It can be. The test is whether an impairment has a substantial and long term adverse effect on normal day to day activities. Many neurodivergent people meet it, and no diagnosis is needed for the protection to apply.
Do union reps need neurodiversity training? The legislation does not require it. But neurodivergence sits underneath a lot of capability, conduct and grievance casework, and it usually presents as something else, so reps who can recognise it are better placed to argue the case in front of them.
How many neurodivergent people are there in the workforce? Estimates usually sit between 15 and 20% of the population, which makes it one of the largest groups any rep will represent.
How Enna can help
We train union reps, equality reps and the HR teams on the other side of the table. For reps, the most useful starting point is usually our reasonable adjustments workshop, which works through real cases: what to ask for, how to word it, and how to tell when an agreed adjustment has quietly stopped happening.
Equality reps who want to lead on this in their workplace tend to get most from neurodiversity champions training. Employers expecting more casework after October can look at neuroinclusive performance management for managers, or ask us for a neuroinclusion audit of the policies that capability and conduct cases run through.
If you want to talk through what your reps or managers need before 30 October, book a call with our team.
