Reflections on the Role of the Trade Union Lawyer

Commentary icon25 Nov 2022|Comment

Lord John Hendy KC

Chair of the Institute of Employment Rights

Trade union lawyers act in various capacities, some cover all the bases, others confine themselves to particular aspects. The principal areas of activity are: acting as an advisor and litigator on behalf of members of the union in the field of workers’ rights vis-à-vis employers (and sometimes in relation to members’ interactions with the police or other State or third parties); acting as an advisor and litigator on behalf of the union itself vis-à-vis third parties (including members), this may involve many fields of law beyond the centrality of trade union law; providing legal education to members and officers; and finally, being active in seeking to change the law.

The trade union lawyer’s central role is obviously to further the interests of the union and its members, under the direction of the General Secretary. Unions have different priorities and these reflect cultural differences in turn reflecting the membership of the union, its history and politics, its leaders’ personalities, and its attitude to the use of the law. The union lawyer has to adapt to these factors.

The Essential Requirements

The necessity for the trade union lawyer to have a good understanding of the relevant law extends well beyond trade union and employment law (and international labour

law). All manner of legal fields of knowledge arise from time to time so the lawyer must acknowledge the limitations of her expertise and know when to call for expert assistance. Understanding of procedural as well as substantive law is necessary.

It is, of course, essential that the union lawyer is a good lawyer with an understanding of the nature of law and, in particular, the underlying realities of labour law litigation, both tactically and strategically. They must be able to accurately evaluate the prospects of success in litigation. Outcomes are influenced but not determined by the strength and cogency of the legal arguments and the manner in which they are deployed; the political, legislative and judicial context of the time and of the moment may be of greater significance.

Labour law is not neutral as between capital and labour. Its ostensible function is often portrayed as the protection of labour from the excesses of capital. Yet more fundamentally, all law in every kind of society is intended to protect the interests of those who hold economic power and this is true of labour law. The statutory rights of workers often do not confer power on them but deny them power. Beneath the statutory overlay of workers’ rights is the fantastical notion of freedom of contract, a concept which tilts the scales of justice so far in favour of employers that recalibration is almost impossible. On the other hand some laws designed to improve the efficiency of labour or to prevent employer competition by undercutting may be of benefit to workers.

Both statutory and common law often divert issues which could be resolved by the exercise of collective strength into courts and tribunals in which the workers are likely to be intimidated, outgunned and under-resourced, where the outcome is statistically likely to be adverse and the remedy, if achieved, largely unenforced and unenforceable. Lack of State enforcement and the weakness of worker enforcement of labour law is obvious and, amongst other manifestations, has been recently shown in the recent spate of fire and re-hire cases and the P&O mass sackings.

Since 1980 restrictions have been placed on the capacity of trade unions to exercise the rights they notionally have in international law, in particular, the rights to organize industrial action, to bargain collectively, to autonomy over their constitutions and expenditure, and to organise. The process continues with the Trade Union Act 2016, further restrictions on protest including picketing, the legitimation of agency strike-breakers, the increase in the limit on damages payable by unions, and the requirement of minimum service levels in transport strikes.

Only fear of social disorder or a particularly adverse outcome for some section of capital restrains further incursions on trade union rights and freedoms by legislation. That fear is also a restraining influence on judicial innovation – though the latter appears somewhat tempered at present by an acceptance in the Supreme Court that there is a marked imbalance in power between worker and employer.

The restrictions on trade unions and the near destruction of collective bargaining completes the damaged and inadequate set of tools with which the trade union advocate must try to work.

Fear of social disorder and the countervailing power of labour is the major determinant in marking out the boundaries of labour law. Such power ebbs and flows in response to levels of organisation, political education, leadership, solidarity, confidence, anger and experience. Other factors include hierarchy, that essential cultural characteristic of capitalism and with it working class deference, respect for the rule of law and an inculcated belief that the law represents justice. And labour law is marked by economic fluctuations of boom and bust, wars, revolution, elections, pandemics and the influence of ideology and the media.

The trade union lawyer must understand this interplay of forces and factors. She fights on an uneven and adverse terrain.

The union advocate must also be sensitive to the background and ideological instincts of the judiciary generally. She must assess the particular judge in the matter in hand and present her case accordingly.

The strategic trade union lawyer is an opportunist looking innovatively for the chances of exploiting the law or sidestepping it, whether as protagonist advancing a claim on behalf of the union or members, or defending them against a claim.

In choosing to advance a claim, the union may have few options: members have been dismissed apparently unfairly, industrial action to restore them is not industrially feasible, negotiation is a non-runner and the only option is a claim for unfair dismissal. Similarly, if a member is injured, made ill or killed at work: the union probably must support a claim for compensation. No strategic considerations are usually necessary in such cases.

Sometimes, however, the lawyer can suggest to the union new lines of legal attack or defence. A number of recent cases exemplify this. Innovative strategic litigation is one of the great pleasures of the union lawyer – if the strategy pays off. The prospects of success in promoting an novel claim must be carefully assessed. The risk of losing strategic litigation requires an iron nerve and great clarity of insight since adverse consequences, particularly in international fora, may have dire consequences, perhaps unseen or unforeseeable. My article provides a number of examples of such claims, both winning and losing, in both national and international fora.

The trade union lawyer must look to integrate legal strategy with the industrial strategy of the union. Sometimes legal action can assist industrial pressure. But sometimes it can distract from the workers’ efforts. The lawyer must remember that the fight is that of the union and the workers and the legal component should always take second place to the industrial. Humility is a requisite.

Sometimes, to maintain the morale and trust of the members, the union must fight apparently hopeless cases and the union advocate must go down to glorious defeat.

Litigation and advice is the obvious activity of the lawyer but the trade union lawyer has also a function to educate, members and officials. Such education will cover the content of labour law, its rights and restrictions, the techniques of advocacy, and the nature of labour law and the limitations of it. There is a marked tendency on the part of trade unionists (lay and official) to see litigation as a way to resolve work issues. They need to know the adverse nature of the battleground and the limitations of the law.

The trade union lawyer also has a role in involving herself in efforts to change the law to create more legal space for trade unions to use the collective strength of the members. There are many organisations committed to this end, though few recognise the specific and crucial role of trade unions. The Institute of Employment Rights is one such.

Lord John Hendy KC

Lord Hendy KC is Chair of the Institute of Employment Rights. He is a barrister specialising in industrial relations law, based in Old Square Chambers, London. He is President of the International Centre for Trade Union Rights (ICTUR) and a Vice President of the Campaign for Trade Union Freedom.