A GROWING FORCE?
Strategic Litigation and Trade Unions: A Growing Force?
Recent coverage in the Law Society Gazette’s article: “”Winning Combinations” highlights the increasing role of trade unions in bringing strategic litigation throughout the tribunal system, and crucially, winning. High-profile cases such as Uber’s landmark employment status battle and Tesco’s equal pay claims illustrate the complex balancing act that unions undertake, representing individual members while also attempting to shape employment law at a national level.
Trade unions have long played a pivotal role in advocating for workers’ rights, but their engagement in litigation that tests fundamental legal principles has evolved significantly. While supporting individual claims remain central to union activity, strategic cases that challenge systemic issues are becoming more common.
“As employment law continues to evolve, understanding how unions operate in this changing landscape will be essential for both businesses and employees alike.”
Alex Marshall, President of the Independent Worker’s Union of Great Britain commented to the Institute of Employment Rights: “strategic litigation is only effective if it is part of a bigger picture, involving union members, campaigns, and communication.” So, where does the future lie for Unions’ funds – strategic litigation, or workplace intervention, or both?
The Employment Rights Bill and a strengthened Union role
With the introduction of the new Employment Rights Bill, trade unions will find themselves with even greater influence. Provisions that enhance worker protections and extend tribunal claim time limits are likely to make it easier for unions to support both individual claims and gather the support needed for cost effective strategic litigation. Given these legal developments, we may see unions taking on more test cases to clarify employment law in areas such as casual work arrangements, AI-driven workplace decisions, and the regulation of new business models.
Individual vs. strategic claims: A shifting focus?
The question remains: will unions prioritise strategic litigation that could reshape employment law, or will we see a rise in union-backed individual claims? The reality is likely to be a blend of both. High-profile test cases attract media attention and can lead to significant legal developments, but the majority of union activity remains dedicated to supporting members in everyday disputes, unfair dismissals, contract breaches, and redundancy consultations.
Trade Union membership trends
Union influence (and financial weight) is also shaped by membership levels, which have fluctuated over the past 25 years. According to UK government data:
In 1995, union membership stood at 7.8 million, covering around 32% of the workforce.
By 2010, this had declined to 6.5 million (26%).
The most recent figures show a slight resurgence, with 6.3 million members in 2022, covering approximately 23% of the workforce.
While overall membership remains lower than in the late 20th century, there has been renewed interest in unionisation in certain sectors, particularly among younger workers in gig economy roles and professional industries where collective bargaining has traditionally been weaker.
What’s next?
The combination of legal reforms, growing union engagement in strategic cases, and shifts in workforce unionisation means we are likely to see more test cases that challenge core employment law principles. As the Employment Rights Bill becomes law and introduces new tests (think probationary periods!), litigation will be needed for judges to clarify the tribunal’s position. At the same time, unions will continue to provide support for individual workers seeking redress. For employers, this means staying alert to potential risks arising from collective action and litigation trends.
As employment law continues to evolve, understanding how unions operate in this changing landscape will be essential for both businesses and employees alike.
What do you think? Are we heading for a new era of strategic employment litigation, or will individual representation remain the priority? Let us know your thoughts.