Legal Change and Legal Mobilisation: What Does Strategic Litigation Mean for Workers and Trade Unions?
| Published date | 01 August 2024 |
| DOI | http://doi.org/10.1177/09646639231204942 |
| Author | Ruth Dukes,Eleanor Kirk |
| Date | 01 August 2024 |
| Subject Matter | Articles |
Legal Change and Legal
Mobilisation: What Does
Strategic Litigation Mean
for Workers and Trade
Unions?
Ruth Dukes
School of Law, University of Glasgow, Glasgow, UK
Eleanor Kirk
Adam Smith Business School, University of Glasgow,
Glasgow, UK
Abstract
This article addresses the question of what strategic litigation means for workers and
trade unions. Drawing on the existing literature and on a series of semi-structured inter-
views with union officials, lawyers with experience in representing them and other
actors from across the labour movement, it explores how U.K. trade unions and actors
within them understand and experience strategic litigation and legal mobilisation, what
they seek to achieve, and what has been effective and ineffective for them. Uncovering
both differences and commonalities between different unions, it suggests that the deci-
sion to devote union resources to –usually very costly –litigation is never taken lightly.
Trade union approaches to strategic litigation involve neither a straightforward embrace
of it nor an outright scepticism regarding its potential.
Keywords
independent workers of Great Britain, legal mobilisation, strategic litigation, Unison,
Unite the Union
Corresponding author:
Ruth Dukes, School of Law, University of Glasgow, Glasgow G12 8QQ, UK.
Email: ruth.dukes@glasgow.ac.uk
Article
Social & Legal Studies
2024, Vol. 33(4) 479–500
© The Author(s) 2023
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/09646639231204942
journals.sagepub.com/home/sls
Introduction
Interest in strategic litigation has recently been sparked by a number of high-profile
‘wins’for trade unions and workers.
1
Several of these have involved platform workers
and claims concerning the workers’employment status and entitlement to employment
rights (Bertolini and Dukes, 2021; Moyer-Lee and Kountouris, 2021), most prominently,
the ‘landmark’decision of the U.K. Supreme Court in Uber v Aslam ([2021] UKSC 5).
Some cases have not only been a landmark in a legal sense, they have also prompted
employers to reach voluntary and not-so-voluntary recognition agreements with the
unions (Bertolini and Dukes, 2021; Blackburn, 2022), or have inspired or galvanised
organising efforts (Kirk, 2020; Marshall and Woodcock, 2022). For some authors, land-
mark victories chart a road that could be more travelled by trade unions seeking to
achieve concrete improvements in members’terms and conditions (Cefaliello and
Countouris, 2020). For others, suspicions remain concerning the propensity of litigation
to depoliticise industrial disputes (Adams, 2023). The concern, in short, is that legal form
only ever poorly captures the nature of the class conflict at stake (Fraenkel, 1930). If liti-
gation is the tool, only formal legal rules (usually individual rather than collective in
form) and contractual terms figure as relevant, even when it is underlying socio-structural
matters that are actually at issue (Fischer-Lescano et al., 2021).
In the field of labour law and work relations, strategic litigation may be broadly under-
stood to encompass any legal action that is taken, defended or supported by a trade union
acting in furtherance of aims that are broader than the dispute in question. Beyond this
basic definition, a review of the literature reveals that rather different meanings have
been ascribed to it by legal scholars and scholars of industrial relations (IR). Whereas
the former have tended to focus on identifying legal rules and contractual terms that dis-
advantage workers in some way and might be vulnerable to challenge in the courts, the
latter consider strategic litigation to be a specific kind of ‘legal mobilisation’, involving
the use of the law by unions to achieve a variety of aims, of which legal change is only
one (Colling, 2009; McCann, 1994). Unions may aim primarily at stimulating recruit-
ment, for example, at pressuring an employer to negotiate a recognition agreement, or
at garnering support in the ‘court’of public opinion.
Together with a growing interest in strategic litigation, it seems that there is also
growing recognition of the desirability of inter- or multidisciplinary research that takes
account not only of the substance of landmark decisions and their implications for the
development of legal doctrine but of how these cases emerge from the bottom-up,
rooted in experiences of work and life (e.g. Bogg, 2022; Kirk, 2020). In a recent
volume on strategic litigation in platform work, for example, several contributions by
legal scholars alluded to the need to begin the analysis from an ‘IR’perspective and to
consider the purposes of workers and their trade unions, and the role of litigation
within broader strategies (Senatori and Spinelli, 2022). Elsewhere, strategic litigation
was described as only ‘one tool in the box’available to unions who would also want
to consider combining litigation with recruitment and publicity drives (Moyer-Lee and
Kountouris, 2021). Taking the existing literature as a whole, however, we find that
only little can be learned about union thinking and decision-making with respect to stra-
tegic litigation: how unions select cases to pursue or support, what the ‘division of labour’
480 Social & Legal Studies 33(4)
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