Brothers in Law

Despite fewer financial rewards, and an ever increasing web of legislation, in-house trade union lawyers say their job is well worth it.Long hours and less pay - two things that in-house counsel at trade unions are constantly fighting against.

It is ironic then, that when compared with in-house counsel in the private sector, they are two things that come with the territory when working for a trade union.Of course, compared with a large proportion of the UK's workforce, trade union legal officials still earn a reasonable living.

The point is, however, that they are not in it for the money.

It is a different mindset.'There is a different philosophy,' says Jim Moher, national legal secretary at the Communications Workers Union.

'Although we're claimant-orientated and naturally have an empathy with our members, we are part of a collective effort to represent workers' interests generally in the business.

This means we see litigation as a supplementary option and not as a first or sole resort.

That requires a different approach.'Often unions will take on cases with slim chances of winning because they believe they must act for reasons of justice.

There is no better example perhaps than the recent case of Fairchild v Glenhaven Funeral Services and others, CA, 11 December 2001 (see Personal injury update, p28).A former council worker, Arthur Fairchild, died from asbestos-related cancer mesothelioma in 1996, after two different employers exposed him to asbestos during his working life.

The Court of Appeal upheld a previous High Court judgment that compensation could not be paid in a case of mesothelioma (where the cancer is caused by one particular asbestos hair), when a worker was exposed to asbestos by more than one employer.

The case is now being taken to the House of Lords.'Everybody agrees that if this is the way the law is, then the law is bonkers,' says Owen Tudor, senior policy officer at the Trades Union Congress (TUC).

It is a situation that seems ridiculous - until Mr Tudor brings home the reality: 'Every day the judgment is delayed another 11 people die.

People are dying before their cases are resolved.'It is this humanitarian approach which appeals to many of those working in this area of law.

'It's not about making profit,' he says.Of course, the unions hope the House of Lords will reverse this decision.

Not purely for the people directly involved, but because it could have wider implications for cases other than mesothelioma.

It is an important point, because trade unions must fight cases which they consider not just important for an individual, but also for their members collectively.'They have to ask themselves: "Should we take this case to the House of Lords, with our members' money?"' says Mr Tudor.

'You have to remember that UCATT, the union involved, is acting on behalf of more than 100,000 people.

Lawyers are always making those decisions on the basis of the union's interest as a whole - that adds another dimension to the work they have to do.'Consequently, an important job for trade union officials is finding external counsel who provide services which are both good and affordable.

'Unions have never been munificent with their largesse in terms of legal expenditure,' says Mr Tudor.

'We've always tried to keep a tight rein on costs.

We are bulk purchasers, therefore we have the ability to demand lower fees from law firms.'He tells a story that exemplifies this: 'During the passage of the Access to Justice Act 1999, one of the things being put forward was: "We have to find ways of making sure that costs don't balloon so that people aren't being charged too much for legal services and so on."'We refrained from raising this example during the hearings on the Act, but I don't think he'd mind me mentioning it now.

During the 1970s, several of our law firms used a particular rising barrister quite extensively on trade union work, until it became clear that his fees were too high.

At that point we just had to stop using the now Lord Chancellor.'Mr Tudor adds diplomatically: 'And good luck to him - he's a bloody good lawyer.

No, make that an excellent lawyer.' The need to find cost-efficient and reliable external counsel is more pressing now that trade unions are outsourcing more legal work.This is in part caused by an increase in the amount of day-to-day work for trade unions' legal teams.

As Labour has set about repealing Conservative laws which shackled the trade unions in the 1980s, the strength of the unions seems once again to be growing.

And as individuals become increasingly aware of their rights, cases involving gender, race and disability discrimination are on the increase.

'It will be expensive for employers who don't put their house in order,' says Mr Moher.However, it is not volume alone that has led to an increase in outsourcing.

Their work has also become more complex, he adds.

'Increasingly, employers are becoming more legalistic.

These days contracts are drawn up with a view to litigation.''Navigating industrial relations law is extremely complicated,' confirms Mr Tudor.

'Trade unions historically weren't terribly keen to bring law into industrial relations, because it involves writing a law that covers a multitude of arrangements.

Most of the laws therefore are general ones which set down objectives that are to be attained but don't exactly specify how you go about delivering.'Changes to funding arrangements have also increased the complexity of the trade unions' work.

'The Access to Justice Act proposed a new way of doing funding [the introduction of conditional fee agreements] and it hasn't quite worked as everyone had expected,' says Mr Tudor.

'There's an increasing amount of satellite litigation there.

One insurer suggested they didn't litigate over actual personal injury.

What they litigated over was costs.'This litigation has effectively thrown into disarray the arrangements for cost recovery in personal injury litigation.

Consequently, the Civil Justice Council held a costs forum at the end of November, at which there was a general agreement that action needs to be taken.'Unfortunately there was a bit less agreement about what needs to be done,' Mr Tudor adds.

But it is likely the government will set aside legislative time to remove the indemnity principle, while work has begun on a scheme of fixed costs for the fast-track.Another complex challenge for legal counsel is the balloting procedure which must be carried out before industrial action can take place.

It can be quite a headache for unions and their lawyers.'It's frankly ludicrous,' says Neil Johnson, a partner at trade union firm Rowley Ashworth.

'The rules are incredibly complicated.

If you get one inch of the balloting procedure wrong, the action becomes unlawful.

There have been injunctions on the most incredibly technical details, almost to the extent that there's a comma out of place.'But balloting does have its benefits.

'Balloting is bloody good,' says Mr Tudor.

'It has taken industrial action out of the pay bargaining arena.

Over the last five to ten years, ballots have very rarely turned into industrial action.

If a ballot is lost, a company doesn't settle because they know no action can be taken.'If it is won with an overwhelming majority, unless the company are really very stupid, they'll settle because they know industrial action will take place.'Another significant development in legislation has led to an increase in work for in-house counsel.

Under the Employment Relations Act 1999, all workers are entitled to be accompanied to disciplinary or grievance hearings.

Although the union may not answer questions on behalf of the worker, it has the right to address the hearing, ask questions and make representations.In most cases, the actual representative will more likely be a lay trade union official rather than a lawyer.

'But union lawyers have had to deal with how that works,' Mr Tudor says.

'And making sure the representative fully understands the workers rights.'Despite the seemingly ever-increasing work load, the long hours and relatively small amount of pay, there is obviously job satisfaction.

Mr Moher has been working for trade unions for over 27 years; Mr Tudor has been at the TUC for 17.

'There are not many of my friends who've been in the same company for that long,' Mr Tudor says.Emma Vere-Jones is a freelance journalist