The opportunities and limitations of strategic litigation in the industrial relations context

In recent years there have been a number of well-documented examples of litigation being used by workers and trade unions as part of their broader industrial strategy. See, for example, legal action which challenged the employment status of Uber drivers and Deliveroo riders, as well as action by the RMT, GMB, and UNISON. Therefore, it is necessary to reflect upon the opportunities and challenges faced by workers and trade unions in the legal system, the use of litigation to resolve industrial disputes, how worker-protective legal arguments can be included and recognised within the legal system, and how legal mobilisation relates to political mobilisation or industrial strategy.

This blog will focus on strategic litigation. Rather than enforcing existing rights in court, strategic litigation is understood here as the practice of contesting current legal rules and precedents by making legal claims which secure new or improved rights and legal protections. There are numerous factors that determine the effectiveness of strategic litigation, from access to resources, procedural rules, to judicial attitudes, and the capacity to enforce decisions. This blog will focus on just two issues: (i) The implications for framing industrial disputes as legal arguments and (ii) the impact of litigation on broader political strategies. This will highlight two key issues when evaluating the effectiveness of legal mobilisation strategies. First, there are both opportunities and limitations of using legal arguments to resolve industrial disputes which will provide a useful reminder of what can and cannot be said in and done with law. In other words, there are significant implications for industrial relations strategy once we recognise how legal systems impose certain requirements on the form and content of legal claims. And, we must consider the ways that judicial decisions recognise, protect, and balance certain social, political, and economic interests and the effect upon the worker-protective aims of strategic litigation. Second, moving beyond the immediate effects of court decisions, we will identify a potentially productive relationship between strategic litigation and the broader socio-political aims of industrial relations strategies.

Legal arguments

The legal system presents both an opportunity to assert rights claims and determine who is owed what obligations in a given time or place. However, it also imposes limitations on what can and cannot be said and the outcomes that can be expected. In order to take advantage of the opportunity to develop the law, arguments must be articulated that are recognisable to the legal system. This means that they must be admissible and capable of being recognised as valid legal arguments.

To unpack the implications of this point, we must recognise how this imposes certain form and content requirements on legal argumentation. The form of an argument must correspond to the procedural requirements of a particular dispute, rule, claim, or court. And, there need to be relevant statutes, case law, principles, and doctrines that ground the content of the action raised by the trade union. For example, disputes about secondary picketing are re-presented as article 11 freedom of association claims and minimum wage or unfair dismissal protections might be presented as employment status claims. In other words, a real dispute or injustice suffered at work must be translated and re-presented as a legal claim. And, there are always already rules within the legal system that impose certain procedural and substantive requirements upon argumentative strategies. This is an obvious point but not a trivial one. It highlights how strategic uses of law must navigate the tension between the opportunity to reinterpret the present distribution of rights and obligations and the procedural and substantive limitations imposed by the legal system.

The challenge for the trade union lawyer is to balance these requirements whilst also holding onto the objective which motivates the strategic mobilisation of law in the first place. Therefore, a legal argumentative strategy must satisfy the law’s strict procedural requirements, be capable of being recognised as a viable interpretation of relevant legal rules, and correspond to a trade union’s political objective or grievance. See, for example, the IWGB’s use of anti-discrimination laws and attempts to mobilise article 11 ECHR to bolster worker’s capacity to take effective industrial action in the UK.

A further consideration is the effect of entrenched social, economic, and political interests which are embedded within the common law and shape the interpretation of a given legal rule. Indeed, it is not enough to identify and articulate a new interpretation of a legal rule, it is necessary to consider the competing normative interests which underpin alternative interpretations. This is particularly pertinent in relation to the development of worker-protective labour laws. We can see that legal claims which seek increased access to employment status and collective labour rights will, in different ways, confront the protection of contractual freedom, employers’ managerial prerogative, competition law, and the maintenance of social order. This means that judicial reasoning accommodates worker-protective claims alongside employer interests, which is an inescapable constraint on what can be achieved in courts.

We can see, for example, in the recent Kostal case, the tension between judicial protection of workers’ collective rights under Article 11 ECHR and employers’ managerial prerogative. The case turned on the correct interpretation of ‘prohibited result’ in s.145B ERA 1996 and whether the employer’s financial inducements led to a permanent or temporary surrender of collective bargaining over the worker’s terms of employment.  The Court of Appeal rejected claims that the employer’s actions amounted to a permanent surrender and an infringement of workers’ fundamental rights to collective bargaining, instead recognising in the statutory rules a requirement to protect the employer’s contractual flexibility. While the decision was overturned in the Supreme Court, the case serves as an example of what is at stake when argumentative strategies create conflict between worker-protective and -repressive interpretations of the common law, precedents, and statutes. As Bogg and Ewing have put it in their excellent analysis of the Court of Appeal decision:

[T]he dispute in Kostal is not really a dispute about the meaning of words at all. It is a dispute about the underlying values that the law should seek to respect and promote. (p.437)

The competing conceptions and weight afforded by the law to the rights and duties of workers and employers is, therefore, a critical consideration when evaluating the effectiveness of strategic labour law litigation. We can point to landmark victories in both individual and collective labour law as examples of the opportunities for developing significant protections and precedents through litigation. At the same time, there are conflicting values, interests, and interpretations that are responsible for continued injustices at work and the absence of adequate labour protections. See, for example, the repressive rules around collective bargaining and industrial action and the absence of meaningful mechanisms of legal redress in the face of the P&O scandal. Moreover, notwithstanding the role of judges in the development of the common law which protects and reproduces the interests and expectations of certain social groups, we must not overstate the capacity of litigation. The judicial role in a parliamentary democracy is limited to identifying the correct interpretation of the relevant legal rules. It is on this terrain that strategic litigation with worker-protective aims must construct creative arguments capable of protecting workers and redressing injustices in spite of the limitations imposed by procedural rules and competing normative interests.

In/direct effects

The second consideration is the relationship between a trade union’s mobilisation of law and wider political objectives. We should begin by distinguishing between strategic litigation and legal mobilisation. As we have seen already, the former refers to the act of launching litigation to achieve certain ends. Following Michael McCann, I use legal mobilisation to mean the strategic use of law as part of a wider ensemble of legal and political actions taken by workers and trade unions. The recent Uber case is an indicative example of the use of strategic litigation as legal mobilisation. While litigation was central to determining drivers’ employment status as ‘limb b’ workers, it represents only part of a longer-term dispute and broader industrial strategy which included unionising drivers, organising industrial action, and boycotts.

There are significant concerns about trade unions, and social movements more generally, using litigation to achieve their aims and objectives. We can point to: the exorbitant cost of litigation; the extent to which it consumes resources and diverts attention away from other effective actions; the challenge of translating real disputes into legal claims; the potentially demobilising effects of legal action which fails to deliver or bears little resemblance to the grassroots movement; and finally, there are concerns about the effective implementation and enforcement of favourable judgments. And yet, legal mobilisation can be effective not just when it delivers a favourable judgment but also when it fails to deliver legal protections and remedies.

This requires expanding our understanding of effectiveness to encompass both ‘direct effects’, which are the legal remedies afforded to ‘winners’ and the ‘indirect effects’ that can flow from litigation. For example, while legal language can be alienating and fail to convey real suffering and injustice, rights and other legal rules and standards provide a language in which to express and formulate grievances both inside and outside the courtroom. As we have seen with campaigns launched by the IWGB, this can serve to mobilise workers around a particular demand and shared injustice which helps to build momentum, collective identity, and solidarity from other workers and civil society. This indicates a further potential indirect effect, the public support that can flow from awareness of a perceived injustice or high-profile litigation campaign. Finally, the threat of further litigation can provide trade unions with leverage in negotiations or campaigns where employers may wish to avoid potentially damaging legal action. Some indirect effects do not require litigation to be formally initiated and others occur even when litigation fails to deliver direct effects in the short term. In these cases, litigation can apply additional pressure on employers and increase political support, solidarity, and the mobilisation of resources in the form of membership and other financial support.

In their contribution to this series, Jamie Woodcock and Alex Marshall have provided a practical insight into the role of in/direct effects in the IWGB’s recent use of litigation. Even where litigation failed to deliver direct effects its high-profile nature has drawn attention to the IWGB’s wider campaigns and organising around access to Article 11 rights at work and the significant deficiencies of the relevant legal frameworks. While at the University of London, the concurrent mobilisation of legal and political tactics is credited with applying sufficient public pressure on the University to insource all cleaners, security guards and porters, thereby providing access to the same terms and conditions and trade union representation.

The above is, of course, subject to strategic calculation. The negative effects of launching costly litigation that fails to deliver workplace protections and adequately redress grievances may significantly outweigh any indirect effects. Law is not mobilised in a vacuum but within the context of a trade union’s broader industrial strategy and it needs to be evaluated both in terms of its legal effects and broader impact on those political objectives. This is unlikely to be news to trade unions and trade union lawyers who deliberate over and weigh the potential for litigation to deliver ground-breaking reforms and protections alongside its de/mobilising effects on membership, the union’s authority, wider strategic objectives, and the best use of finite resources. The diverse and rich contributions to this series from trade unionists, lawyers, and academic researchers provide essential further insights which deepen our understanding of the innovative and in/effective ways that law is used in the industrial relations context.

Note

I am grateful to Alan Bogg, Manoj Dias-Abey, Federico Szczaranski, and Paolo Sandro for their helpful comments on a draft of this blog. For those who are interested in a longer-form treatment of some of the arguments in this blog, please see: Jack Meakin, Labour Movements and the Effectiveness of Legal Strategy: Three Tenets, 38 International Journal of Comparative Labour Law and Industrial Relations 187 (2022) https://kluwerlawonline.com/journalarticle/International+Journal+of+Comparative+Labour+Law+and+Industrial+Relations/38.2/IJCL2022009