{"id":142821,"date":"2025-03-19T02:42:32","date_gmt":"2025-03-19T02:42:32","guid":{"rendered":"https:\/\/peraltafinancing.com\/business\/legal\/trade-union-lawyers-winning-combinations\/"},"modified":"2025-03-19T02:42:32","modified_gmt":"2025-03-19T02:42:32","slug":"trade-union-lawyers-winning-combinations","status":"publish","type":"post","link":"https:\/\/fivemor.com\/?p=142821","title":{"rendered":"Trade union lawyers: Winning combinations"},"content":{"rendered":"


\n<\/p>\n

\n

An indefinite all-out strike by Birmingham\u2019s 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\u2019s 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\u2019s \u2018rats feast as Birmingham bin workers strike\u2019.<\/p>\n

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.<\/p>\n

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.<\/p>\n

But there is huge variety in trade unions, and therefore in the legal advice that supports their activities. Those listed on the government\u2019s website include trade associations (Professional Cricketers\u2019 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.<\/p>\n

Million-member-plus unions like Unison have an in-house legal team running their own briefs and, in Unison\u2019s 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 \u2013 turning on issues such as TUPE, equal pay and the national minimum wage.<\/p>\n

The law firm Thompsons handles most of the personal injury and employment claims for Unison\u2019s 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.<\/p>\n

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. \u00a0<\/p>\n

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 \u2013 crowdfunding, initiatives such as the Good Law Project and Foxglove \u2013 also share space previously dominated by trade unions and their law firms.<\/p>\n

\n

\"Shantha<\/p>\n<\/div>\n

In profile<\/h3>\n

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.<\/p>\n

\u2018Sometimes we are approached to advise on matters which may be of political importance but where there is no clear legal answer,\u2019 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.\u00a0\u00a0 \u00a0<\/p>\n

\u2018It is important to have an honest dialogue with the client about the prospects of winning,\u2019 Newman says. \u2018It\u2019s 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.\u2019<\/p>\n

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.<\/p>\n

Future of the workplace<\/h3>\n

The talk of trade union legal teams right now is the government\u2019s Employment Rights Bill, which has reached the report stage in the Commons. \u2018The biggest change to workers\u2019 rights seen for a decade,\u2019 according to Thompsons\u2019 partner Neil Todd, the bill is the first phase of delivering the government\u2019s \u2018Plan to Make Work Pay\u2019, fulfilling Labour\u2019s commitment to introduce this legislation within 100 days of coming to power.<\/p>\n

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).<\/p>\n

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.<\/p>\n

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.<\/p>\n

<\/p>\n

‘The Employment Rights Bill has the potential to make a profound difference to the lives of workers in the UK’<\/p>\n

<\/p>\n

Neil Todd, Thompsons<\/p>\n

\n<\/p><\/blockquote>\n

Trade union lawyers also made strong representations over the previous government\u2019s 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.<\/p>\n

The Employment Rights Bill omits \u2018the right to switch off\u2019. Advocated by the TUC, Unison and others, this refers to a right not to engage with work-related communications outside work hours. <\/p>\n

\n

\"Neil<\/p>\n<\/div>\n

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.<\/p>\n

\u2018The [bill] has the potential to make a profound difference to the lives of workers in the UK,\u2019 says Todd. \u2018While trade unions would have liked some of the provisions to go further \u2013 the legislation will not provide for an outright ban on either zero hours contracts or fire and rehire in all circumstances \u2013 it will nevertheless represent an important step forward in rebalancing industrial relations.\u2019<\/p>\n

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. \u00a0<\/p>\n

\n

Employment Rights Bill<\/h3>\n

The government recently set out its proposed amendments to the Employment Rights Bill ahead of the report stage on 11 and 12 March. The bill is subject to intense lobbying and may change further.<\/p>\n

At the time of going to press, the headline issues include: <\/p>\n

    <\/p>\n
  • Unfair dismissal from day one:<\/strong> The right not to be unfairly dismissed from day one is to be modified during an \u2018initial period\u2019 \u2013 not yet specified \u2013 when a \u2018lighter touch\u2019 dismissal procedure can be used.<\/li>\n

    <\/p>\n

  • Guaranteed hours for zero-hours contracts:<\/strong> Agency workers are now included in the new right to be offered guaranteed hours if on a zero-hours contract. This also extends to the right to reasonable notice of shifts. Both agency workers and employees can opt out of these rights by collective agreement.<\/li>\n

    <\/p>\n

  • Statutory sick pay (SSP) is a day-one right:<\/strong> SSP becomes payable from day one of sickness, rather than four days. Those below the lower earnings limit will have a right to sick pay at 80% of average weekly earnings.<\/li>\n

    <\/p>\n

  • Miscarriage bereavement leave:<\/strong> Mothers and their partners will be given the right to two weeks of bereavement leave if they have suffered a pregnancy loss before 24 weeks.<\/li>\n

    <\/p>\n

  • Dismissals during\/after pregnancy:<\/strong> It is likely that such dismissals will be banned except in specific circumstances.<\/li>\n

    <\/p>\n

  • Fire and rehire outlawed \u2013 almost:<\/strong> The practice of fire and rehire\/replace is banned, except in situations where the business is in extreme financial distress.<\/li>\n

    <\/p>\n

  • New Fair Work Agen<\/strong>cy: The bill creates a new state enforcement body, the Fair Work Agency. Its remit will include minimum wage and statutory sick pay, labour exploitation and modern slavery, and holiday pay.<\/li>\n

    <\/p>\n

  • Collective rights strengthened: <\/strong>Trade unions may have digital\/virtual access to the workplace. The measures they must comply with before launching industrial action have been eased \u2013 for example, the notice period to employers is reduced from 14 to 10 days. There are also proposals to stop employers from flooding the bargaining unit with workers in the recognition ballot process.<\/li>\n

    <\/p>\n

  • Other proposed amendments:<\/strong> Changes to regulate the use of umbrella companies and to collective redundancy consultations.<\/li>\n

    \n<\/ul>\n<\/div>\n

    High-stakes litigation<\/h3>\n

    Under the umbrella of \u2018strategic work\u2019 also fall the landmark cases that come before the higher courts on workers\u2019 rights, which have a pivotal impact on business practice. Recent examples are the employment claims fought against Uber, Asda, Tesco and Birmingham City Council. \u00a0<\/p>\n

    The Supreme Court ruling in Uber BV v Aslam in 2021 established that Uber drivers were \u2018workers\u2019 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.<\/p>\n

    Asda\u2019s 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.<\/p>\n

    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 \u00a3760m and pushing it to the verge of bankruptcy.<\/p>\n

    Access to justice<\/h3>\n

    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.<\/p>\n

    \u2018Employment tribunals play a vital role in workers\u2019 rights,\u2019 says David, who steered the case over a tumultuous five years through the courts, spanning six hearings \u2013 three in the High Court and three in the Court of Appeal \u2013 before achieving success in the Supreme Court. \u2018By 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.\u2019<\/p>\n

    Unison\u2019s 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.<\/p>\n

    Thompsons achieved a hat-trick of Supreme Court wins in autumn 2024, for USDAW, RMT, Unite and PCS. \u2018Many 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,\u2019 says Todd.<\/p>\n

    \n

    \"Newcastle<\/p>\n<\/div>\n

    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.<\/p>\n

    \u2018Check-off\u2019 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.<\/p>\n

    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\u2019 employment contracts. The Supreme Court agreed, meaning that third parties are in a better position to enforce contractual rights in future cases.<\/p>\n

    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.<\/p>\n

    The third case in which Thompsons succeeded in the Supreme Court was an alleged \u2018fire and rehire\u2019 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\u2019s earlier decision.<\/p>\n

    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.<\/p>\n

    <\/p>\n

    ‘Employers must be prepared to make more adjustments for individuals to avoid disability claims’<\/p>\n

    <\/p>\n

    Afshin Bemani, RCN<\/p>\n

    \n<\/p><\/blockquote>\n

    \u00a0Afshin 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.<\/p>\n

    \n

    \"Afshin<\/p>\n<\/div>\n

    \u2018Employers,\u2019 he says, \u2018must 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.\u2019<\/p>\n

    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.<\/p>\n

    \u2018The work is varied and wide-ranging, covering all aspects of employment law from harassment to holiday pay,\u2019 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.<\/p>\n

    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.<\/p>\n

    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\u2019s 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.<\/p>\n

    \u2018To 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,\u2019 says David. \u2018It encapsulated all the reasons why I became a lawyer.\u2019<\/p>\n

    \u00a0<\/p>\n

    Katharine Freeland is a freelance journalist<\/strong><\/em><\/p>\n<\/div>\n\n","protected":false},"excerpt":{"rendered":"

    An indefinite all-out strike by Birmingham\u2019s 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\u2019s council over plans to downgrade some staff and reduce their pay; 400,000 households are affected. 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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\u2019s council over plans to downgrade some staff and reduce their pay; 400,000 households are affected. 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