When trade unions turn to litigation: ‘getting all the ducks in a row’

• Date: 01 May 2018
• DOI: http://doi.org/10.1111/irj.12212
• Published date: 01 May 2018
• Author: Cécile Guillaume

When trade unions turn to litigation:

‘getting all the ducks in a row’

Cécile Guillaume

ABSTRACT

Driven by their members’demands and the need to adopt more combative legal

strategies in order to oppose the deterioration of working and employment condi-

tions, British trade unions have developed in-house legal expertise and supported

many individual and multiple claims. This article investigates the variation in unions’

legal practices and examines their organisational responses to law and the role of

compliance professionals in the regulation of employment litigation. It provides a

nuanced account of the influence of legal rationality on the framing of union

strategies and shows that, under certain conditions, trade unions are able to build

multi-pronged tactics by using litigation as a complement to other forms of action.

1 INTRODUCTION

Statutory intervention in the employment relationship has grown significantly in the

UK over the last decade partly driven by policy making at the European level

(Hyman, 2010). The number of employment tribunal claims increased from around

100,000 cases per year in 1995–96 to 236,103 in 2009–10. These claims have been

partially supported by non-professional ‘legal intermediaries’(Pélisse, 2007; Talesh,

2015), such as trade unions. Driven by their members’demands and the need to adopt

more combative legal strategies in order to oppose the deterioration of working and

employment conditions, trade unions have acted as support structures (Epp, 2008)

to sustain recourse to the law and have become repeated players (Galanter, 1974) in

the courtroom.

This recourse to the law does not benefit from a favourable legal opportunity

structure (Hilson, 2002; Vanhala, 2012). Contrary to the Donovan Commission’s

vision of an accessible, speedy, informal and inexpensive employment tribunal service

(Colling, 2004), successive reforms (Dickens, 2014) have rendered access to justice

costly, legalistic and selective (Colling, 2004; McDermont, Kirvan and Sales, 2016).

Academics (Colling, 2010; Pollert, 2007) and legal practitioners (Renton, 2012) have

argued that the increased legalism of employment relations (Heery, 2011) represents

an impasse for workers both in terms of dispute resolution and compensation. It is

an indication of the weakening of trade unions in terms of workplace representation,

industrial action and political influence. The balance between statutory and socialised

forms of workplace regulation has become unequal. As a result, dispute resolution

❒Cécile Guillaume, Senior Lecturer in Employment Relations and HRM, Roehampton Business School,

Roehampton Lane SW15 5PU London, UK. Correspondence should be addressed to Dr Cécile Guillaume,

Senior Lecturer in Employment Relations and HRM, Roehampton Business School, Roehampton Lane,

London SW15 5PU, UK; email: cecileguillaume94@gmail.com

Industrial Relations Journal 49:3, 227–241

ISSN 0019-8692

© 2018 Brian Towers (BRITOW) and John Wiley & Sons Ltd