The Year of Discontent – Unions

The past 12 months have been marked by a steep increase in industrial action impacting a number of major corporates. LB talks to the small group of firms manning the picket lines

It’s all a long way from beer and sandwiches at Number 10. Now, more than ever, large corporate employers are fighting threatened strike action launched by some of the country’s largest and most aggressive unions. However, instead of the threat of strikes being discussed behind closed doors in Downing Street, á la the 1970s, the drama is being played out in court.

Since October 2009, British Airways (BA) has made seven court appearances, while the likes of Network Rail, London Midland, Transport for London (TfL), Serco Group and EDF Energy have also come head to head with the unions in the courts. More look set to follow. In March this year, workers at the Post Office overwhelmingly voted in favour of strike action.

This stream of cases has handed a mountain of complex and drawn-out work to a very small and select band of lawyers.

‘How often do you get the opportunity to have an immediate impact on people’s lives?’
Marc Meryon, Bircham Dyson Bell

In terms of firms acting for the employers, the numbers are thin. Bircham Dyson Bell, Baker & McKenzie, Eversheds, Lewis Silkin, Pinsent Masons and Herbert Smith have dedicated teams of lawyers to advise on trade union disputes.

The number of firms advising the unions is just as thin. LB100 firm Thompsons Solicitors is the main go-to practice for the country’s largest and most active unions, while EAD Solicitors, Pattinson & Brewer Solicitors, Russell Jones & Walker and Simpson Millar also advise in the area.

With the business community continuing to clash with the trade unions, UK firms look set to face a sharp rise in new instructions. Trade union Unite has balloted BA cabin crew for a fifth time since January 2010, and TfL continues to square off against the National Union of Rail, Maritime and Transport Workers (the RMT) and the Transport Salaried Staffs’ Association (TSSA) over its tensions with Tube workers.

‘For an employer, you don’t want to go to the High Court unless you’re absolutely committed,’ says Ed Goodwyn, an employment partner at Pinsent Masons. ‘With the risk of industrial action, you face the risk of adverse publicity. Even if you win at court, you need to think about your long-term industrial relations.’

The reality for these firms is that trade union teams at even the largest commercial practices are still minuscule. While consolidation of the UK’s unions has impacted the number of firms that advise them, the technical and unusual nature of the work also leaves little room for new entrants into the market.

The prawn sandwich brigade

Bircham Dyson Bell’s employment partner Marc Meryon could do with a breather. ‘I hardly had a Christmas,’ he sighs, as he emerges from his latest union-related case. His team completed two injunction applications in the week immediately before Christmas and one more shortly after New Year. Part of a small group that specialises in trade unions, Bircham’s four-lawyer team spends most of its time advising on industrial relations. It has chalked up a number of notable recent successes.

At the start of 2011, Meryon’s team stepped in for Serco, the operator of London’s Docklands Light Railway, and won a High Court injunction preventing the RMT from staging a 48-hour strike in late January.

In December last year, the firm advised London Midland on its High Court injunction against trade union Associated Society of Locomotive Engineers and Firemen (ASLEF), which helped the train operator avoid strike action over Christmas. As in the Serco case, the High Court’s decision was appealed by the union and the courts overturned the previous judgment in early March.

The Bircham Dyson Bell team also helped to prevent a strike by Network Rail signalling staff in April 2010. The High Court granted the rail operator an injunction and stopped the RMT from launching the largest rail strike of the past 16 years.

The pace can be frenetic and, not surprisingly, Meryon says the firm has seen its biggest spike in work over the past 18 months. During that period, the firm’s team advised on roughly 400 strike ballots. ‘We get involved early on in the process to help clients plan to avoid disputes, but if employers end up with a dispute, we are well placed to try and stop it,’ comments Meryon.

Staking a claim to an equal amount of headline grabbing work is Baker & McKenzie. The firm has maintained its role as the leading adviser to BA throughout its bitter and ongoing dispute with the British Airlines Stewards and Stewardesses Association (Bassa), a branch of the Unite union that represents the airline’s cabin crew.

The firm’s London employment partner John Evason, alongside two other partners, has advised the airline through seven court appearances, five strike ballots and a raft of work stoppages launched by BA’s cabin crew. In November last year, in one of the biggest victories for the airline, the Court of Appeal rejected an appeal by Unite to prevent BA from reducing the number of cabin crew on long-haul flights from 15 to 14. Thanks to their work, the team won the Employment, Pensions and Benefits Team of the Year award at this year’s Legal Business Awards.

Daniel Ellis, a partner in the group, notes that industrial relations is high on the list of concerns for a number of their commercial clients. ‘There is a whole host of issues that happen behind the scenes,’ he says. ‘Unsurprisingly, some clients work very closely with us when industrial action is being threatened, because industrial action is high up on their list of concerns.’

Like Bircham Dyson Bell and Baker & McKenzie, City firm Lewis Silkin has had some milestone wins in the past 12 months. Court documents show that the firm advised EDF Energy on a 2009 High Court injunction against the RMT. The Court of Appeal then rejected a bid by the RMT to appeal a High Court injunction previously granted to EDF. The decision prevented a walk-out by EDF employees, who work at electricity substations serving the London Underground. Lewis Silkin’s team is made up of six lawyers who advise on the area and work closely with the firm’s 70-lawyer employment team.

National practices Pinsent Masons and Eversheds also pick up union-related work for their corporate clients, while, of the larger City practices, Norton Rose and Herbert Smith have both advised on high-profile disputes.

Although not predominantly noted for its trade union practice, Norton Rose is thought to have scored a role acting for TfL in its ongoing fight with the RMT and TSSA unions. In 2008, Herbert Smith acted for London Underground on the insolvency and restructuring of Metronet Rail and represented Cable & Wireless plc in its union recognition dispute with the Communication Workers Union (CWU).

After years of employment being put on the back burner by many City firms, it has suddenly become a much more business-critical area.

Real ale

‘This area is one of development and industrial action cases have been one of the main legal battlefields of the past two years.’
Stephen Pinder, EAD Solicitors

Union disputes in the courts heat up quickly. Often driven by financial concerns, politics and emotion, tension in the courtroom is always thick. Just as a small band of firms regularly act on behalf of employers, so a group of usual suspects advise the unions.

Thompsons has long been considered the pre-eminant union practice, a position that was strengthened by its 2009 merger with Rowley Ashworth. Counting Unison, Unite, The British Airline Pilots’ Association (BALPA), the RMT and the GMB as its major clients, the firm has appeared on the other side of the BA, TfL, Network Rail, EDF Energy, London Midland and Serco disputes.

Richard Arthur, head of trade union law at the firm, claims that the last time Thompsons missed out on a high-profile dispute was back in 2008. ‘There are very few dull moments for me,’ he says. ‘It has been a busy period since October 2009. It’s a sign of the times. Where you have austerity measures and economic pressures, workers are not going to be happy.’

Having qualified at Freshfields Bruckhaus Deringer, Arthur quickly realised that commercial law wasn’t for him. He joined Thompsons in 1998 and has since built a team of 44 partners, all of whom are dedicated to trade union work one way or another. Alongside Arthur, partners Victoria Phillips and Neil Johnson are two of the firm’s leading advisers.

Phillips is currently representing BALPA in the European Court of Justice in a dispute concerning holiday entitlement for BA pilots. The firm is also advising the RMT on its challenge of the UK’s trade union laws in the European Court of Human Rights. The union is arguing that the country’s legislation is in breach of Article 11 of the European Convention on Human Rights, which gives people the right to freedom of peaceful assembly.

Although Thompsons shows up on many union cases, it shares work for Unite and the GMB with regional outfit EAD Solicitors. EAD, which leads its practice from Liverpool, has 20 lawyers dedicated to union disputes. Employment head Stephen Pinder says that collective disputes is an area that the firm treats as the jewel in the crown of its business.

‘We deal with all aspects of employment and industrial law,’ says Pinder. ‘People are more aware of their rights and prepared to pursue claims. This whole area remains one of development in the law, and the industrial action cases have been one of the main legal battlefields of the past two years.’

EAD’s practice was solidified by Pinder’s arrival to the firm more than a decade ago. With over 20 years’ experience in the area, he joined EAD from Thompsons in 2000.

Most notably, EAD took a lead role advising Unite in its dispute with bus operator Metrobus in 2009. Every lawyer LB spoke to says that the decision by the courts in this case set the water mark for the judgment of similar disputes. In Unite v Metrobus, the Court of Appeal upheld an earlier injunction granted to Metrobus preventing Unite from staging a work stoppage. According to the courts, the union had failed to meet the requirements of ballot notification.

Pattinson & Brewer, a ten-partner firm with offices in London, Bristol and York, advises on a number of local government-related disputes for the unions. The firm additionally shares Unite as a client with Thompsons.

Binder Bansel, one of the firm’s leading lawyers in the area, says the firm gets brought in at various stages, from defining what the trade dispute is to the balloting point or when the employer decides to go to the courts. Because of this, the nature of the work can be high-octane: ‘If it’s at the final stage, you can have less than 48 hours to prepare,’ he says.

Simpson Millar employment partner Joy Drummond says that when a dispute reaches the High Court it’s usually driven by the employer and, because the unions are bound by tight requirements, the laws are very difficult to comply with.

Much like her contemporaries at Thompsons and EAD, Drummond qualified in the 1980s when employment law was an unusual area to focus on: ‘When I qualified, there weren’t a lot of people that specialised in it, either on the union side or advising employers,’ she says. ‘Now the backwater has become a roaring river.’ Simpson Millar finds itself advising on a lot of disputes within the postal sector. National firm Russell Jones & Walker also takes on union-related work and counts Prospect, which represents doctors, engineers and scientists, as its largest union client. The 55-partner firm has been advising on union issues for over 75 years.

As a small band of solicitors dominates the major mandates for the unions, so John Hendy QC of Old Square Chambers is typically the lead counsel fighting the unions’ corner. Hendy has shown up in almost every major dispute to hit the courts and is also acting alongside Thompsons in the RMT’s application to the European Court of Human Rights in Strasbourg.

On the other side, Charles Béar QC of Fountain Court Chambers has been particularly active in picking up instructions on the TfL, London Midland, Serco, Network Rail and Metrobus court disputes. ‘Once you’ve done it once or twice, you have a name for it,’ says Béar on how he has carved out his niche. ‘The last minute nature of the work means experience is key. You have to be able to have everything prepared after the strike notification,’ he adds. ‘That means fairly swift action, and it’s helpful to have counsel who know the ins and outs [of the laws].’

Medium to well done

All of the members of this small club of solicitors and barristers have specialised in union relations since qualification. For instance Vince Toman, a qualified barrister in Lewis Silkin’s team, started his professional life as a union shop steward in a nuclear plant. He then went on to earn a law degree and started his legal career acting on the union side of the fence.

Bircham Dyson Bell’s Meryon qualified at Rowe & Maw in 1991 and began by focusing much of his practice on the transport sector. ‘There isn’t a detailed guide on how to challenge industrial action, so it is a difficult area to break into without prior experience,’ says Meryon. ‘A lot of the instructions are based on reputation.’

Because trade union law is so technical and because the demand for advice has been low until relatively recently, the sector is significantly under-lawyered. ‘It tends to be so technical and, unless you have a professor who is interested in the area at university, then lawyers don’t get it, as they don’t teach you these skills at the School of Law,’ Toman comments.

Recent consolidation among the unions has also contributed to the dwindling numbers of firms acting in industrial relations. Unite was formed in 2007 after Amicus, the UK’s largest private sector union at the time, merged with the Transport and General Workers’ Union. The union has since moved to acquire smaller outfits such as Bassa.

Similarly, the RMT was formed more than a decade ago after the National Union of Railwaymen merged with the National Union of Seamen. And Unison, the UK’s second-largest union, is the product of a three-way merger between the National and Local Government Officers Association, the National Union of Public Employees and the Confederation of Health Services Employees in 1993.

With a surfeit of work, it helps that recruitment has become easier as trainees and young associates are showing increased interest in union-related work. ‘A lot of firms thought of trade union disputes law as having less relevance as the years have gone by,’ says Lewis Silkin employment and incentives partner Lisa Patmore. ‘More law firms are [now] looking to build up their expertise in this area.’

In a pickle

Employers are much more prepared to spend the money taking the unions to court over threatened strike action. Compared to business losses during a strike, the legal fees are a drop in the ocean for employers. ‘Legal fees are not an issue and I doubt whether legal fees would be the utmost concern for an employer. The bigger impact is on the public relations side of things,’ comments one lawyer, who did not want to be named.

Depending on the complexity of the dispute, legal fees per High Court visit can cost £150,000. Throw in the work leading up to a case and costs can escalate quickly.

‘You always get great tension between employer and employee during a downturn. ’
Ed Goodwyn, Pinsent Masons

But then the price of any action can make a significant dent in a company’s accounts. The 22 days of picketing launched by BA cabin crew cost the airline almost £150m. The London Chamber of Commerce estimates that each day of the Tube strike cost London £50m, and Tube workers went on strike four times between September and November 2010.

Although a High Court injunction is regarded as a great success for employers when they are granted, it is merely a sticking plaster on a bigger problem. ‘All of this is often just delaying the perfect ballot,’ says Herbert Smith employment partner Andrew Taggart. ‘You’re trying to negotiate a successful outcome, but it’s a long game.’

Pinsent Masons’ Ed Goodwyn says the legal position is only part of a jigsaw. ‘Whether we spot a mistake in the ballot process and get them to back down can only mean a delay. They can always ballot again.’

The effects of the downturn and sharp cuts in public spending mean that more strike action is widely expected. ‘You always get great tension between employer and employee during a downturn,’ says Goodwyn. ‘One of the weapons of the unions’ arsenal is industrial action.’

With the growing threat of action, the government has warned of tightened trade union laws, and the business community is pressuring parliament to do this. Mayor of London Boris Johnson has spoken out against the current laws, while The CBI published a paper in October last year announcing plans to reform industrial relations laws. One of the main proposals is to change the percentage of votes needed on a ballot to define a ‘majority’.

As they fight their corner, the unions are now warning of collective action. General secretary at Unite Len McCluskey is threatening to launch a nationwide strike of tanker drivers in a bid to disrupt motorists and damage the UK’s fuel supplies. The dispute between BA and Unite is nowhere near resolution, and the RMT continues to fight staffing changes made by TfL.

On both sides, the lawyers share a clear passion for the work. ‘You live on adrenaline because things happen so quickly,’ comments Meryon. ‘How often do you get the opportunity to have an immediate impact on people’s lives?’

Thompsons’ Richard Arthur adds: ‘You do this job for different reasons. You do it because you believe in it and, of course, because it affects thousands of people who should be protected and have someone speaking out and fighting for them.’ For union lawyers it’s their time in the spotlight. LB