Winning combinations

An indefinite all-out strike by Birmingham’s refuse workers began on Tuesday. The strike is led by the union Unite, which has 1.2m members across the UK and Ireland. The union is in dispute with the city’s council over plans to downgrade some staff and reduce their pay; 400,000 households are affected. The dispute has gained national attention, with headlines like the BBC’s ‘rats feast as Birmingham bin workers strike’.

It is the behemoth unions such as Unite and public services union Unison, with 1.3m members, and the Royal College of Nursing (RCN) (500,000) that grab the public and media attention, along with the pronouncements of umbrella body the Trades Union Congress (TUC), which has 48 member unions.

While unions have reduced in influence and membership since the 1970s, some still have the power to make the industrial relations weather. Union legal teams have a central role in asserting that power.

But there is huge variety in trade unions, and therefore in the legal advice that supports their activities. Those listed on the government’s website include trade associations (Professional Cricketers’ Association) and regulators (the GMC), plus organisations representing industries as diverse as cabin crew, psychologists, zoologist staff, writers and musicians. Some are affiliated with Labour, but most are not. Some, such as the RCN, are obliged to remain politically neutral.

Million-member-plus unions like Unison have an in-house legal team running their own briefs and, in Unison’s case, cultivating their own talent through trainees. Led by head of legal services Shantha David, the 12-strong Unison team handles all appeals in the higher courts as well as strategic employment law cases – turning on issues such as TUPE, equal pay and the national minimum wage.

The law firm Thompsons handles most of the personal injury and employment claims for Unison’s individual members. With a commitment to social justice since 1921, Thompsons is also a popular choice of instruction for smaller unions which do not have the resources to field their own in-house legal teams.

Claimant-only firm Leigh Day is also associated with this work and is highly active in the market. Irwin Mitchell, Slater and Gordon and Cole Khan Solicitors have trade union expertise, while Pattinson & Brewer is notable for emerging from the trade union movement in 1890, sustaining this focus up to the present day.  

The pool of law firms serving trade unions and their members has shrunk in recent years, mainly due to the contraction of the personal injury legal sector. Alternative legal service providers (ALSP) have filled the void to some extent. The RCN, for example, outsources its PI claims to an ALSP rather than handling these in-house. Alternative routes to accessing justice – crowdfunding, initiatives such as the Good Law Project and Foxglove – also share space previously dominated by trade unions and their law firms.

In profile

Lawyers who advise trade unions at a high strategic level have a strong command of advocacy, whether in a tribunal setting or addressing a parliamentary committee. Skilled at running briefs, they must be sure-footed on legal process and not afraid to push back if the merits of a proposed case are legally weak.

‘Sometimes we are approached to advise on matters which may be of political importance but where there is no clear legal answer,’ says Michael Newman from Leigh Day, who acts for claimants in employment tribunals and the higher courts on whistleblowing, harassment and equal pay claims, including the recent highly publicised ASDA equal pay case.    

‘It is important to have an honest dialogue with the client about the prospects of winning,’ Newman says. ‘It’s also part of that dialogue to look at whether a number of people have experienced the same legal injustice. By drawing them together we have the power to potentially change the law by bringing a claim.’

A strong sense of justice, interest in the interplay of politics and society, and the ability to empathise and communicate in relatable terms to people from different social backgrounds are also important.

Future of the workplace

The talk of trade union legal teams right now is the government’s Employment Rights Bill, which has reached the report stage in the Commons. ‘The biggest change to workers’ rights seen for a decade,’ according to Thompsons’ partner Neil Todd, the bill is the first phase of delivering the government’s ‘Plan to Make Work Pay’, fulfilling Labour’s commitment to introduce this legislation within 100 days of coming to power.

A technically complex and ambitious bill, in its current form the legislation covers far-reaching reforms to flexible working, parental leave, zero-hours contracts, sick pay, fire and rehire practices and trade union rights in the workplace. Crucially, employment rights apply from day one, freeing employees to move jobs without losing their built-up advantages (see box, below).

In a win for trade unions, one amendment bans employers from unfairly influencing the union recognition ballot process. The GMB union (500,000-plus members) had argued that employers were flooding the bargaining unit (the group of employees that will be represented by the union). It cited an instance in which, following its first application, Amazon added over a thousand workers on temporary contracts, meaning that the ballot fell short of the 50% target needed for statutory union recognition.

The result of weeks of consultation between business groups, trade unions and civil society, the bill is a good example of the role that trade union legal teams play in influencing government policy.

'The Employment Rights Bill has the potential to make a profound difference to the lives of workers in the UK'

Neil Todd, Thompsons

Trade union lawyers also made strong representations over the previous government’s plans to axe overnight more than 2,400 EU-derived laws in the Retained EU Law Bill, which, as Unison argued in expert evidence to parliament, would devastate basic protection for workers.

The Employment Rights Bill omits ‘the right to switch off’. Advocated by the TUC, Unison and others, this refers to a right not to engage with work-related communications outside work hours.

Business groups argued that the move would place a greater burden on employers already saddled with higher national insurance and dwindling productivity. The ups and downs of the bill demonstrate the balancing act the government must walk between competing stakeholders, all of which seek to influence the final form of the act.

‘The [bill] has the potential to make a profound difference to the lives of workers in the UK,’ says Todd. ‘While trade unions would have liked some of the provisions to go further – the legislation will not provide for an outright ban on either zero hours contracts or fire and rehire in all circumstances – it will nevertheless represent an important step forward in rebalancing industrial relations.’

An analysis of the progress of the bill through its various stages showcases the strategic work performed by union legal teams, including providing extensive oral and written evidence to the parliamentary committee of MPs charged with deciding on the detail.  

High-stakes litigation

Under the umbrella of ‘strategic work’ also fall the landmark cases that come before the higher courts on workers’ rights, which have a pivotal impact on business practice. Recent examples are the employment claims fought against Uber, Asda, Tesco and Birmingham City Council.  

The Supreme Court ruling in Uber BV v Aslam in 2021 established that Uber drivers were ‘workers’ in law, entitled to basic employment protections, including the national minimum wage, holiday pay and protection against discrimination. Bates Wells acted for the claimants in the case, which sets an important precedent for how employment tribunals decide worker status in the gig economy.

Asda’s working practices were exposed to scrutiny in a recent Employment Tribunal fight over equal pay, which found in favour of 12 of 14 women acting as lead claimants for the store workers in the action. To date, the claimants, represented by Leigh Day, have established that they perform work of equal value to the male comparators. Asda must now provide a reason not related to sex for the difference in pay. Tesco, Next, Morrisons and Co-op face similar equal pay claims, after paying predominately female store workers less than staff working in the warehouse, who are predominantly male.

Losing an equal pay claim can have serious repercussions. In December 2024, Birmingham City Council agreed on a payout to 6,000 staff members (supported by Unison and the GMB) to settle equal pay claims over differences between staff in female-dominated roles such as catering and cleaning, compared to male-dominated roles such as waste collection. The settlement is around four times what the council offered staff in 2021, leaving the authority with estimated liabilities of £760m and pushing it to the verge of bankruptcy.

Access to justice

Union legal teams are also prepared to challenge the court process itself if considered unfair to the members that they represent. In 2017 Unison won a landmark Supreme Court victory against the government over its 2013 imposition of fees on those seeking to bring cases to employment tribunals and appeal tribunals.

‘Employment tribunals play a vital role in workers’ rights,’ says David, who steered the case over a tumultuous five years through the courts, spanning six hearings – three in the High Court and three in the Court of Appeal – before achieving success in the Supreme Court. ‘By introducing fees, the government made it almost impossible for individuals to bring claims, restricting the right to access to justice and undermining the rule of law.’

Unison’s stance was supported by official figures pointing to a sustained fall in claims after the fees were introduced. Claims dropped by 81% between April and June 2014, compared with the same period the year before. Discrimination claims also plummeted; evidence that, as Unison suspected, the fees had a large impact on women and marginalised groups.

Thompsons achieved a hat-trick of Supreme Court wins in autumn 2024, for USDAW, RMT, Unite and PCS. ‘Many people do not realise the pivotal role that trade unions play in dynamically shaping the law, changing working practices and creating a fairer workplace for workers,’ says Todd.

A case for the PCS, the largest trade union in the civil service, concerned the unilateral withdrawal of check-off payroll deduction arrangements by several government departments between 2014 and 2015, following instruction from the Cabinet Office.

‘Check-off’ arrangements refer to the practice of union members having dues deducted directly from their salaries, providing unions with a reliable income stream and members with an easy payment method.

The instruction led to severe financial and administrative difficulties for the PCS, which brought claims for damages on the grounds that the move breached contractual terms in its members’ employment contracts. The Supreme Court agreed, meaning that third parties are in a better position to enforce contractual rights in future cases.

In November, the Supreme Court ruled unanimously in favour of the RMT and Unite in proceedings against the operators of Newcastle Metro concerning a long-standing pay dispute. The effect of the judgment is that the operator Nexus is required to pay more generous shift allowances to employees than it otherwise would have done.

The third case in which Thompsons succeeded in the Supreme Court was an alleged ‘fire and rehire’ exercise by Tesco to remove the rights of employees to receive retained pay. USDAW and its members employed as warehouse operatives in the case sought an injunction against the move, a position confirmed by the Supreme Court, overturning the Court of Appeal’s earlier decision.

Guiding potentially groundbreaking cases through the higher courts and appearing before parliamentary committees are clear highlights for trade union legal teams. This should not obscure the fact that much of the work is focused on helping individuals.

'Employers must be prepared to make more adjustments for individuals to avoid disability claims'

Afshin Bemani, RCN

 Afshin Bemani has worked at the RCN as a senior legal officer and solicitor for over 16 years, over which time he says claims have become more complex. The RCN is the largest union of healthcare workers in the UK, with over 500,000 members working in the NHS and private sector. The number of disability discrimination claims from nurses with mental health issues or those who are neurodivergent has increased, for one thing.

‘Employers,’ he says, ‘must be prepared to make more adjustments for individuals to avoid disability claims and also think about employing the most appropriate way to communicate with each staff member.’

The RCN is also seeing more claims from international healthcare workers from countries including India and the Philippines, challenging private sector contracts which they are locked into for a long period, in some cases four to five years. Workers must pay a substantial sum for training and immigration fees if they leave before this period is up. In other instances holiday pay has been miscalculated, leaving the worker at a financial loss.

‘The work is varied and wide-ranging, covering all aspects of employment law from harassment to holiday pay,’ says Bemani. It is also very rewarding, he adds, especially in helping to assert the legal rights of workers in a weaker bargaining position than their employers.

The regulatory team within the legal department are highly active: representing RCN members referred to its regulatory body, the Nursing and Midwifery Council, dealing with the Disclosure and Barring Service (DBS), and making representations in inquests and public inquiries, such as the Covid Inquiry.

This is a small world where there exists between in-house union teams a gentle rivalry underpinned by camaraderie. More formal networks exist through the Law Society’s Employment Law Committee, where members provide a balance to the concerns of corporate-facing colleagues, and the Employment Lawyers Association. The role suits people who enjoy the intellectual rigour of law and seeing their efforts play out in the real world of work.

‘To sit in the Supreme Court and hear the judge referencing Magna Carta and confirm the right to access to justice was paramount in Unison v Lord Chancellor was a seminal moment,’ says David. ‘It encapsulated all the reasons why I became a lawyer.’

 

Katharine Freeland is a freelance journalist