The Independent Workers’ Union of Great Britain (IWGB) has been involved in a series of high-profile cases of strategic litigation in recent years. These include cases at the University of London, the Health and Safety judicial review, and courier worker status cases, including The Doctor’s Laboratory (TDL) and Deliveroo. This is a departure from how many trade unions used the law for organising and collective bargaining previously.

The IWGB was founded in 2012 by Latin American cleaners organising for better working conditions. Since then, the union has grown to thousands of members across the country. Through strikes, legal action, and public pressure, the union fights for workers’ rights and improved conditions. The IWGB has campaigned against the exploitative practice of outsourcing, where workers are employed by a third-party company instead of the institution where they actually work.

The IWGB has also been at the forefront of strategic litigation to challenge bogus self-employment, winning rights, and backdated pay for gig economy workers. The Legal Department handles hundreds of cases every year responding to issues that members are facing, including the illegal deduction of wages, bullying, unfair dismissal, and more. The IWGB has brought many high-profile cases, particularly in the gig economy. It is a part of the strategy, turning individual cases into collective campaigns. In many examples, starting with a single case has allowed the union to organise and win many victories in different workplaces.

University of London

The use of the law has played a role in organising at the University of London since the start of the union. The IWGB made applications to the Central Arbitration Committee (CAC) for recognition at both the university and the outsourcing company Cordant. The CAC refused the applications as there was an existing voluntary recognition agreement in place. In response, The IWGB brought a case against the Secretary of State for Business, Energy, and Industrial Strategy and Others, which was recently decided by the Court of Appeal.

The IWGB claimed that the decision based on the Trade Union and Labour Relations (Consolidation) Act 1992 was in breach of Article 11 of the European Convention on Human rights. This was because the trade union that had entered into the voluntary recognition agreement with the Employer was not representative of the majority of employees. The argument was that the IWGB had the right to trade union recognition because it is the most representative trade union in that bargaining unit. Although the case was not successful, it was important to keep the debate open around trade union rights under Article 11 of the European Convention on Human Rights. It publicly raised the issue and highlights the limits of existing regulation of trade unions, particularly for the representation of migrant and precarious workers. This is an issue the IWGB has faced at a series of workplaces and is also happening more widely in the so-called gig economy.

In another example, the IWGB made an application for statutory trade union recognition at the CAC, arguing security guards were employed by both the University of London and Cordant as joint employers. This was based on the argument that IWGB members received the instructions directly from employees of the University and they were, therefore, under the direct control of the University and not only Cordant. In the US, there is a concept of “joint employer” that has been developed in case law. If two entities have control over the employee, both are then employers. Therefore, workers would have the right to collectively bargain with both.

The IWGB legal argument was that for Article 11 to mean anything, workers must be able to collectively bargain with the client that controls the terms and conditions. However, the IWGB abandoned the “joint employers” legal argument because, in the meantime, the University of London has insourced all security guards (between May and November 2020).

Although these legal cases were only one of many elements, the campaign was ultimately victorious at the University of London. Litigation alone could not have won the campaign, but at various points, it drew attention to the struggles taking place in the workplace. This is particularly effective in a sector like higher education where public image is so important to bosses. Through strikes, protests, and a boycott, the cleaners, security guards, and porters have all been insourced. They are now working directly for the University on the same pay scales and with the same terms and conditions as other university staff.

Health and Safety Judicial Review

This case forms one part of IWGB’s strategy for addressing the lack of enforcement. As Jason Moyer-Lee, the previous General Secretary argued, “the UK’s track record on enforcing workers’ rights is abysmal”, quoting the former Director for Labour Market Enforcement who claimed that companies had a chance of being inspected over the minimum wage once every 500 years. While the effects of this lack of enforcement are often hidden, during the pandemic these became clear.

The IWGB saw first-hand what this looks like for its members. Many cleaners had to fight to be furloughed, while having to work in dangerous environments with no protective equipment provided. Similarly, workers in the so-called gig economy struggled to receive any support due to their ongoing battles over employment status.

In response, the IWGB sought declarations in respect of the UK’s failure properly to transpose into domestic law material provisions of two EU directives, namely, Council Directive 89/391/EC “the Framework Directive” and Council Directive 89/656/EC, “the PPE Directive.” The IWGB succeeded in this case.

The judgement found that the UK government had failed to implement these into UK law and that these obligations should be extended to workers, as defined in section 230(3)(b) of the Employment Rights Act 1996 (limb b workers). Any individual who suffered injury or detriment as a result of the failure to implement may be able to bring a claim against the UK Government for damages (a Francovich claim). Direct effect claims can be made by members working for public employers, while those working for private employers could make claims by arguing that under “Marleasing principles”, UK law must be interpreted in conformity with EU law.

Beyond the workplace, the IWGB demands a government which is proactive in legislating to address the gaps and deficiencies in the law. This requires a properly funded enforcement body that is actively seeking out employers who are failing to protect their workers. It must involve on-the-spot inspections to ensure worker safety is being prioritised. These tasks must be taken up by the government, instead of having unions and key workers bring judicial reviews and court challenges.

Couriers and Deliveroo

A particularly important example of the IWGB strategy has been the cases at TDL. Alex Marshall (now IWGB President and a co-author of this piece) was hired as an independent contractor. While working at TDL he saw first-hand the injustices workers faced through these arrangements. He started organising and brought Employment Tribunal proceedings for worker status with two other workers.

Following the success of the case, the company conceded and recognised the whole fleet as “limb b workers” and employees. This allowed Alex to then recruit more widely across the company and obtain trade union recognition, providing significant leverage to their campaign. The IWGB members then took industrial action, including a range of protests, occupations, and other tactics to win pay rises for the whole workforce.

The TDL campaign is an example of how legal strategy can be effectively combined with other forms of action and organising. The company would have not conceded on the issue of worker status if the workers had not been organising with IWGB. It is also worth stressing that TDL knew there would be consequences if they did not concede on worker status.

In the gig economy, legal cases have been important, but it is often not possible to rely on the courts to get employers to obey the law. For example, at Citysprint, the IWGB brought a worker status claim in 2017. The union won and immediately after Citysprint changed the contracts of all the other couriers. This changed the goalposts again and meant the union had to submit further tribunal claims to challenge the new contracts. This is just one example of how, in the absence of an organised workforce, companies can evade successful judgments and take advantage of the lack of effective labour market enforcement functions.

The opposite has happened with the IWGB campaign at Deliveroo. Since 2016, the union has been organising Deliveroo riders and seeking worker status and trade union recognition. It is important to note here that while the legal approach has failed on this occasion, from the very beginning the union has been experimenting with new ways to organise with these workers. This started with a focused street campaign in Camden, recruiting workers at restaurants, to multilingual organising across the city. In particular, this has meant developing sustained links with migrant communities. The campaign has involved protests, boycotts of restaurants, strike action, pressuring investors, and an international focus on Deliveroo’s IPO. This has put the company under enormous pressure from the press and public, leading to one of the worst performing IPO in London’s history.

On legal strategy

Organising at work is key to improving pay and conditions. However, this takes place against a broader background: an overall decline in trade union membership and power, an increasing individualisation of the employment relationship, shifts in industrial relations away from union recognition and collective bargaining, as well as increased enforcement through employment tribunals and courts.

While there have been successes in the use of legal strategies, there are also important questions about legal approaches more widely. Are they driven by the structural weakness of the labour movement or do they represent a strategic rethinking of the role of the law within worker organising more widely? For the IWGB, as a small union, legal strategies have provided one tool that can be used within a wider strategy. However, we know it is workers themselves that have the power to change their work – and make sure these changes are enforced in practice.

For the IWGB strategic litigation is only effective if it is part of a bigger picture, involving union members, campaigns, and communication. This can turn legal victories into workers’ victories, or even benefit workers when a judge believes the case was lost. Now more than ever, we need a strong union presence in workplaces to ensure that in the absence of proper enforcement, or in combination with it, workers’ rights are always paramount.