Lecturer in Employment Law, School of Law, University of Glasgow
Recent interest in the practice of ‘strategic litigation,’ juxtaposed by further assaults on the right to strike, has reignited long-standing debates over the promise and peril of trade union and worker engagement with law and the courts. It is worth reflecting upon how workers and unions engage with law in multiple, often contradictory ways, with the aim of integrating political and legal struggles.
Changing orientations to law?
In the first, 1965 edition of The Worker and the Law, Lord Wedderburn, noted that for over half of the last century ‘most workers want nothing more of the law than it should leave them alone.’[i] By his third edition in 1986, following the proliferation of individually-based employment rights, extension of the tribunal system and suppression of collective rights, Wedderburn would add that: ‘If there is still a preference to be left alone … there is now a stronger, though not necessarily justified, expectation that the law can be of help in time of trouble at work.’[ii]
While opening with an intriguing observation on workers’ shifting orientation towards law, Wedderburn’s focus was evaluating the legal characterization, constitution and protection of the worker through law. Less often have scholars considered the worker and the law from the other end of the telescope, taking the perspective of how workers and their organisations view law and the legal system, the extent to which they venerate or are alienated from law, and the ways in which they engage with it. It is indeed a complex issue strategically for the movement and for researchers trying to understand it.
What is described as ‘legal consciousness,’ tends to be contradictory. Legal consciousness research explores how ‘laypeople,’ the non-expert subjects of law, engage with law or do not, involving a wide range of diffuse activities and a capacious understanding of ‘law’ and the ‘legal’.[iii] Very commonly, people will describe their experiences of law as magisterial, impartial and just, while also seeing it as a rigged-game, full of tricksters and as an oppressive force prone to delivering unfair outcomes and entrenching inequalities.
In the same way, workers and their unions simultaneously tactically engage with law and the courts while also railing against its limits, and we should be wary of oversimplifying our assessments and prognoses about if and how unions should do this. To pose a dichotomy of utilising or rejecting law would however be reductive of the complex ways in which trade unions and their members simultaneously reproduce elements of (neo)liberal legality while reforming or rejecting aspects of it, reducing ‘law’ to a one-dimensional phenomenon which we are either for or against.
To explore this argument further, we can distinguish the different modes of such engagement, from the more deliberate and apparent ways in which workers engage with law, to increasingly diffuse, symbolic and unconscious means through which we either reproduce or transform society and its structures. Considering three categories of engagement- legal participation, legal mobilization and via the construction of legalities forming legal consciousness- we can better assess shifting orientations to law and their implications.
Workers most obviously and formally engage with law when they seek formal justice by ‘having their day in court.’ Workers also engage with the legal system by attempting to enact new laws either as statutes or by bringing cases that set legal precedents. Where the effect of such actions are more about wider social and political targets, we speak of legal mobilisation.
A narrow definition of legal mobilization as litigation or claiming can be contrasted with the use of the term to denote wider, usually collective mobilization of people behind a cause, i.e. the more quotidian ways in which law is invoked to embolden individual action, or inspire and radiate a sense of injustice, underpinning collective organisation, action and protest.[iv] Recent examples of litigation over employment status demonstrate the potentially inspirational effect of law to draw new members to causes, and the unions leading them, as demonstrated particularly by the Independent Workers’ Union of Great Britain (IWGB) and the United Voices of the World (UVW). Moreover, legal mobilization relates to a broader sphere of activity than legal participation, as it may refer to forms of action away from the courts such as protests, strikes, or simply expressions of workplace solidarity. Indeed, the need for, additional tools, tactics and means of framing ‘rights’ relates to the limited remedies available via formal legal participation and the technical and dispassionate language of formal law.
Informally, people may take inspiration from litigation and the rights at stake within them even if the rulings are niche, or not strictly applicable to their own circumstances. The campaign of foster carers to be recognized as workers is a particularly good example. This group were inspired by news stories of early gig or platform economy battles over employment status, i.e., ‘bogus self-employment’, drawing together broad solidarities in inventive ways, and challenging definitions in law of status and rights. Writers and activists often draw upon notions of social rights that are ‘not dependent on the content of legal provision,’ to rouse and rally their intended audiences. [v] What matters is whether such framings of law or rights resonate.
Both legal participation and mobilization relate to the relatively rare circumstances in which people litigate, mobilize, or even contemplate such acts, or are privy to such intentional, purposive action by others. One final form of engagement, legal consciousness, suggests, somewhat ironically, that much of our activity, whether it acts to support or challenge existing legal orders, is unconscious in the sense of being taken-for-granted. That much of the reproduction of legality is largely unconscious tends to work in favour of dominant ideologies and narratives which may go unchecked, or only partially interrogated.
Legal consciousness researchers have concerned themselves with the question of why people tend to display a remarkable faith in the law and legal system, despite evidence of the persistent inequalities it produces or reinforces. The notion of legalities, ‘the meanings, source of authority, and cultural practices that are commonly recognized as legal, regardless of who employs them or for what ends,’ provides a construction of what law is to non-experts and may or may not correspond closely to formal law.[vi]
We participate in the construction of legality, maintaining or challenging the existing legal order, whether or not we ever set foot in a courtroom or file a formal complaint. Our sense of legality is forged and reworked in our daily lives and interactions with others, on picket lines, while we discuss the news, and as we reflect on working days and their aggravations.
This concept assists us in appreciating the fullest reaches of law into society and to engage in questions of legal domination and hegemony without falling into hopeless traps of overdetermination by law, treating it as merely an ‘ideological cloak’ of class power that blinds and overwhelms people who are then powerless to resist. Law simultaneously serves and constrains, reflecting accommodations by the state of demands emanating from society, and is constitutive of relations which both constrain and enable social actors and social justice. The concept of legal consciousness, particularly the notion of ‘legalities’ better equips us to explore how our vague notions of our rights relates to the law on the books, and how these contribute to the reproduction or (more rarely) transformation of the existing order, linking to notions of legal domination and hegemony. Equipped with these insights, we can better understand evolving legal engagement.
In the UK, across the last half a century since Wedderburn’s 3rd edition, we have broadly seen rising legal participation (although suppressed by the unlawful fees regime from 2013-17), an apparently increased appetite within the union movement to combine strategic ligation with organizing and protest among diverse groups and new industries as well as older trades and professions. Such legal mobilization in the ‘gig economy’ has placed a spotlight on employment rights and the limits of law on the books as it stands, inspiring many to take legal action as well as join trade unions. It cannot be assumed that by engaging in such tactics, the consciousness of workers or their unions has come to be dominated by legal framings.
Qualitative and quantitative research does suggest however a generalised trust in law to ‘be there’ in the event of problems at work.[vii] Non-union workers in particular sometimes assume that their grievances will be resolvable by an employment tribunal. Employment rights can live in our minds as an unread insurance policy cited as a reason for not seeking mutual insurance of trade unionism. Workers often belatedly regretted not having been members of a union once problems emerged and they came face-to-face with the limits of labour law. Few had previously been actively hostile towards trade unionism; they simply thought that as rights bearers within a supposedly civilized society, they did not require union membership in order to deal with their employers. Employers would not behave illegally and if they did, a tribunal would swiftly admonish them.
The significant gap between expectation and legal reality is contextualised by the peculiar historical development of labour law. Generous sounding rights have been reduced to ‘paper tigers’, as Bob Hepple, and subsequently Anna Pollert, have argued: ‘fierce in appearance but missing in tooth and claw’.[viii] Legal consciousness bears the imprint of the manner in which labour law has been developed, with big headline assurances in the form of basic rights – to a minimum wage, protection from unfair dismissal and so on – the enforcement of which have been steadily undermined by successive governments and the substantive rights heavily caveated.[ix] It is little wonder that we tend to overestimate the level of protection and underestimate the difficulty of enforcement.
Making use of the law tactically need not mean it defines consciousness. Litigation is but one tactic to be deployed within a much broader conception of the political strategies of social movements and we should not confuse the politics of rights with litigation. Recent critiques of unions deployment of the ‘legal form’ as inherently de-radicalising help us to reflect upon the integration of political and legal strategies, reminding us in no uncertain terms of the limits of litigation amid flurries of excitement around ‘landmark’ legal cases.[x] While there is a clear danger of overestimating the help law will provide us, few within the movement are starry-eyed about the legal form, even within unions heralded as litigation enthusiasts.
Nor should we overemphasise the grip of the technical details of law on the consciousness of non-legal actors. Activists rarely pay great heed to technicalities when invoking law in mobilisation campaigns, but rather draw more abstractly and selectively in their storytelling about legal victories and defeats and their significance in ongoing struggles. In such mobilising efforts, the technical details of the law in the books may be immaterial relative to the importance of staging conflicts which raises public consciousness of new forms of struggle and solidarity. In invoking law to radiate a sense of injustice, the rallying cries need not be framed as meagrely as whichever precise legal gains that have been made in the books via litigation. A defeat in court does not necessarily kill off mobilising potential. Instead, such legal struggles, by staging conflicts, bring additional elements of publicity to the issue, with the heightened stakes of being a courtroom drama. The intended audience of this play is the wider public and workers collectively as much as the legal players. The goal of legal mobilisation broadly understood is mobilising workers as much if not more than legal resources.
One recent live example comes from the UVW’s campaign against ‘‘the scourge of outsourcing,’ building pressure ‘from the picket line to the courts,’ with claims of indirect racial discrimination against St George’s University, the Secretary of State for Justice, Great Ormond Street Hospital and the Royal Parks.’[xi] This struggle is not only framed as discrimination, but as institutionalised racism- i.e. systemic in a society and institutions that sees outsourcing, with its impact in terms of racial segregation, as justifiable in economic terms. That government is such a prolific user of outsourcing mounts a serious challenge to their mode of operating, in policy terms and as an employer. ‘The legal, political & economic ramifications of this case cannot be overstated & whatever the outcome in court UVW will remain at forefront of the industrial struggle against outsourcing.’[xii]
Even if the legal cases fail in terms of the impact of the principals’ policies, the cases serve to stage the conflicts and thereby publicise the injustices of labour market dualization, fragmentation and racialised segregation.
Unions can and do engage with law in ways that promote dual understandings of the simultaneous righteousness and limits of legal ‘wins.’ It may be useful nonetheless for activists to constantly reflect on the storytelling and communication surrounding litigation and its implications, ever mindful of presenting the wider political as well as legal analysis.
I am grateful to Jack Meakin and Kendra Briken for their helpful comments on earlier drafts. For those who are interested in a longer-form treatment of some of the arguments in this blog, please see: Kirk, Eleanor. ‘The Worker and the Law Revisited: Conceptualizing Legal Participation, Mobilization and Consciousness at Work’. International Journal of Comparative Labour Law and Industrial Relations 38, no. 2 (2022): 157–184.
[i] Lord Kenneth William Wedderburn, The Worker and the Law (1st ed., Harmondsworth: Pelican
[iii] Patricia Ewick & Susan Silbey, The Common Place of Law: Stories from Everyday Life (Chicago:
University of Chicago Press 1998).
[iv] Michael McCann, Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization (Chicago:
Chicago University Press 1994); Trevor Colling, Court in a Trap? Legal Mobilisation by Trade Unions in the United Kingdom, Warwick Papers in Industrial Relations (2009), https://warwick.ac.uk/fac/soc/wbs/research/irru/wpir/wpir_91.pdf
[v] Alan Hunt, Explorations in Law and Society: Towards a Constitutive Theory of Law 12 (London: Routledge
[xi]https://twitter.com/UVWunion/status/1664239108741382145?s=20 see also Vera Weghmann, The tail that wags the dog: lessons from the UK’s independent unions for class struggle trade unionism. 45 Employee Relations 808-822 (2023); Dias-Abey, Manoj. ‘Mobilizing for Recognition: Indie Unions, Migrant Workers, and Strategic Equality Act Litigation’. International Journal of Comparative Labour Law and Industrial Relations 38, no. 2 (2022): 137–156.