There were two significant legal victories for trade unions this week courtesy of Unite and UNISON. UNISON’s victory means that employers cannot discipline workers who participate in industrial action and Unite’s means that employers can’t undermine collective bargaining via incentives and inducements. These victories are a positive development that will benefit workers in the future. They also provide an opportunity to analyse trade unions’ troubled relationship with the law and how it is often something that unions need to overcome.
Unite’s case had been rumbling on since 2019 while UNISON’s has been ongoing since May 2020. It is likely that many workers will have suffered in that time because the law took too long to recognise what it has now decided are basic trade union rights. The law must be definitive when it is upheld, but must by necessity also be malleable so it can be changed and updated. Unite’s case, after an initial victory in 2016 at an employment tribunal, was overturned at the Employment Appeal Tribunal (EAT) but then prevailed at the Supreme Court while UNISON’s only prevailed at an EAT. Thus, the legality of the employer’s actions in both cases continually changed. This necessary malleability is also a problem with the law: it is reactive and rapidly becomes outdated by changes in society and then, only when prompted by events, takes time to catch up while others suffer the wait.
Something is not intrinsically good or bad because it is legal or illegal. Ideally, all good things would be legal and all bad illegal, but this is not the case. Typically, it is not the abstract nature of an act’s legality that informs people’s actions but how likely they think they think they are to suffer reprisals. For instance, it is because of a lack of reprisals that we have the amount of Class A drug use that we do; it has become widely socially acceptable though it remains illegal. If employers do not feel the law will punish them, then they will continue to act against workers with impunity. It does not matter how great the punishment is for a transgression if people believe that it will not be enforced. For trade unions, the question with the two recent legal victories is: to what extent will they be enforced?
The answer is quite possibly not very much, or at least not enough. The law is arguable and can be subject to interpretation. Consequently, the application of trade unions’ legal support to their members at a shop-floor level varies, as unions will often have to assess the likelihood of a case’s success before they decide whether to fund it going to the court. This means that there will often be employer practices that look and feel illegal but do not meet the threshold to be worth a union’s time and resources in challenging.
More specifically, significant parts of UK law are not a friend of trade unions or workers and seldom have been. The shifting nature of these laws highlight how, when it comes to trade unions, the law is an expression of power not morality. For instance, the 1901 Taff Vale verdict that ruled unions would be liable for tort (and gave impetus to the development of the Labour Representation Committee) was overturned by the Liberal government in 1906. More recently, much of the industrial action prior to the 2016 trade union act would now be illegal. Individual workers can be subject to fire and rehire (which the current government recently shirked debating in parliament) and have no mandatory employment rights until they have been working in a job for two years (an entirely arbitrary cut off point). Thus, the law is often an expression of power and interests which clash with those of workers organised labour.
Successive Conservative governments have placed legal shackles on trade unions, while New Labour only empowered workers individually by passing legislation such as the 1998 Working Time Regulation Act, the 2002 Employment Law Act, and the 2010 Equalities Act, but left anti-trade union legislation untouched. Consequently, the UK has some of the most restrictive trade union legislation in Europe and the practice and structure of employment law still favours employers too much and workers not enough.
Even bills that are non-specifically anti-union, such as the proposed Police, Crime, Sentencing and Courts Bill, which limits the ability to protest, can be detrimental to unions who will often deploy protests and marches as part of their campaigns. It is difficult to shake the feeling that any transgressions of the law by trade unions will be much more vigorously enforced than transgressions by employers. See, for example, the lack of prosecutions for employers who do not pay the minimum wage; the law is only as good as those charged with administering it and too often they are prejudiced against trade unions.
However, it is possible that, in the future, trade unions will have to act outside of the law to highlight the injustice of the law and force change as they have done throughout their history. If and when push comes to shove, they cannot let an immoral legal cage prevent them from advancing their interests. Unite have openly acknowledged this and, in a move that is as much publicity as anything else, have pledged to break the law if necessary, in relation to industrial action.
The two recent victories show that the law can be a useful, albeit slow and expensive, tool for trade unions. However, much of the UK’s legal framework exists in opposition to the interests of workers and organised labour and means that they will always have an uneasy relationship with the law. Sadly, this is unlikely to change any time soon, and how this shapes trade union action is still an open question.
This article is part of The Social Review’s series on Trade Unions, with a commitment to publish at least one article a month on the subject – but we we want as many as possible. If you have an idea for an article we’d love to hear from you, please read our pitching guidelines and email us at editors@thesocialreview.co.uk