'Gainfully employed': An interview with Shantha David

‘You do realise it’s far less sexy or exciting,’ says Shantha David, Unison’s acting head of legal services. She is describing an attempt by Deshpal Panesar KC, a keen photographer, to recreate a photograph of the Washington Post team that uncovered Watergate. Panesar, who has acted for the union many times, wanted ‘to capture what it was like to bring about a strategic case’. 

The thrills of Unison’s strategic litigation may not have translated well to photographic ‘glamour’. But as David wraps up 24 years in Unison’s legal department, the period at the very least presents as a heady time. Among them are four Supreme Court cases which were defeats for the government. 

These cases saw expertise, intelligence, litigation resources and clear legal aims coalesce with dramatic results. Unison’s challenge to the introduction of Employment Tribunal (ET) fees, led by David over its four-year course, left a key government policy shredded when the Supreme Court quashed the fees in 2017. (The government had won in the High Court and Court of Appeal.) 

I ask if her role, and what has been made available to her to fulfil it, has been a privilege. It has, she says, describing Unison as ‘an organisation with 1.3 or 1.4 million members’ in which ‘there are activists and there are employed staff, all of whom are looking for solutions all the time’.

We are talking at the start of August, the month she left Unison to join the judiciary as an ET judge. So, while we will still talk as friends of 25-plus years – we met working for a legal publishing company – this interview marks the end of her engagement with the media. 

Much depends on lunch

We are talking in a canteen, recalling the inception of one of her Supreme Court cases – Harpur Trust v Brazel & UNISON [2022]. ‘It was a conversation in a lunch queue,’ she says. David joined an overheard conversation in the food line. A colleague told her, ‘there’s a problem with miscalculation of annual leave for support staff in schools’. 

The union decided to intervene in a case, eventually succeeding at the Supreme Court, thereby ensuring minimum guaranteed holiday pay with no pro-rata reduction. The outcomes of Brazel and another Supreme Court case, Chief Constable of PSNI v Agnew & Ors [2023], ‘which ensured a break of three months or more will not stop workers bringing back pay claims’, were enshrined in legislation in 2024. Brazel led to an estimated £140m in back payments to staff. 

Unison’s intervention in Agnew, David recalls, emanated from another chance encounter. ‘I was at the Industrial Law Society and happened to have a conversation with a lawyer from Northern Ireland who was talking about this case and the fact that it was about to go to [appeal],’ she says. Should Unison intervene? ‘Michael Ford [KC] knows everything about holiday pay... So I discussed it with Michael. I said, “Mike, shall we?”.’ 

Ford took the case for Unison and won. Following the judgment, the union has 2,000 claims running in Northern Ireland. ‘It’s a really important legal principle, which means that people who seek to get their back pay don’t have this additional barrier if it’s a regular payment that’s been going back to a period of time,’ she notes. 

In the rest of the UK, a two-year ‘backstop’ applies, limiting claims. That is now the subject of a challenge. Once again, Unison is preparing to intervene in the case. 

‘It’s the luxury of being where I am,’ she reflects. ‘I’ve had that kind of opportunity… to have that sort of oversight and think, “OK, I know there’s a gap in the law there. We can challenge it”. And I’m not burdened by being in a law firm, which is very specific about your hourly rate, your billable hours.’ 

1215 and all that  

This century has witnessed a developing narrative around litigation in parts of our politics and the media. In essence, the argument is that civil claims in areas such as employment and personal injury law are too easy to bring, regardless of merit, and that a developing ‘litigation culture’ is a burden on businesses and has a chilling effect on employers. 

The election of the Conservative-led coalition in 2010 delivered a government sympathetic to that narrative. Costs are not awarded against a losing party in the ET and Employment Appeal Tribunal (EAT), so, it was argued, employees making a claim faced no adverse consequences for making an unmeritorious claim. 

In 2013, the government introduced claimant fees for ET and EAT cases, ranging from £390 to £1,200. Within a year, claims had fallen 53% – arguably not because of a drop-off in unmeritorious claims, but because the fees were prohibitive to potential claimants who had, in most cases, lost their job. 

Unison decided to seek a judicial review of the fees’ introduction, a case run over four years by David. As noted, the union met with no success until the Supreme Court. There, its judgment thoroughly vindicated the decision to keep going. The court found the fees were unlawful. 

The judgment’s author, Lord Reed, wrote: ‘In English law, the right of access to the courts has long been recognised. The central idea is expressed in chapter 40 of the Magna Carta of 1215 (Nulli vendemus, nulli negabimus aut differemus rectum aut justiciam), which remains on the statute book in the closing words of chapter 29 of the version issued by Edward I in 1297: “We will sell to no man, we will not deny or defer to any man either Justice or Right.” Those words are not a prohibition on the charging of court fees, but they are a guarantee of access to courts which administer justice promptly and fairly.’ 

For those who opposed the fees, it was ‘obviously very thrilling at the time’, David says, with the invocation of Magna Carta especially pleasing. The union had instructed silks Dinah Rose and Karon Monaghan. Michael Ford, another Unison favourite, acted for an intervener, and it was a thorough vindication of the decision to continue with the case. 

Recognition of the result was widespread, for David individually and for the Unison legal team. She was named Liberty’s ‘human rights lawyer of the year’, won a Halsbury Rule of Law Award, and also the Modern Law Awards ‘outstanding achievement’ title. The legal department was both litigation and employment team of the year at the Lawyer Awards – a list more usually topped by City and international law firms. 

Yet, such judgments do not provide a full fix. How does she view the case’s impact now? ‘What’s stark is that the number of claims going to tribunals is still not at pre-fees levels,’ she observes. Some of that is down the court’s backlog. What needs to follow such a judgment, David notes, is ‘a policy solution’.  

For those still convinced that too many unmeritorious cases at the ET are a business burden, she points out that early advice could be more widely available. ‘There is no legal aid for tribunal claims. There is no assistance,’ she notes. ‘So, unless you’re represented by a trade union or private solicitors, how do you know whether a claim is good or bad?’ 

Learning to talk

Despite the union’s record on litigation – for a vast number of individual members as well as the major cases we have been reviewing – David points out that negotiation is a union’s preferred route to a resolution. Parties, she argues, should find dialogue to be a better solution. 

‘We don’t talk about problems anymore,’ she ventures. ‘We don’t try and solve problems. When I first started, things were resolved. And that’s what the whole trade union movement is about. It’s about resolving problems without the need to go into a tribunal. It’s about trying to negotiate a position, find where the fault lines are, see [past] the whole “he says, she says” scenario, try and understand what the block is, what the issue is.’ 

Asked what her time at Unison has taught her about the justice system, she notes that achieving legal ‘justice’ may not match a client’s view of justice. ‘You need to frame your question within the restraints of the law. And that’s not always the same as what you might feel is seeking justice,’ she says. ‘It’s a slow process. And it doesn’t always satisfy the parties. Having to draw people back and give them a reality check on what can be achieved in that process isn’t the easiest. It’s a hard task for lawyers – and that goes for all litigation.’ 

Yet the vast sums at stake in key equal pay disputes mean such matters are almost inevitably headed for hard-fought litigation. Then, David says, ‘when it comes to bringing a claim, the other side will take every single point, whether the point has prospect or not. And if you’ve got the resource, you will do that because what you’re trying to do is avoid this massive settlement’. 

'When I first started, things were resolved. And that’s what the whole trade union movement is about. It’s about resolving problems without the need to go into a tribunal'

Unison Scotland’s long-running equal pay disputes with Glasgow City Council, while not fully resolved, have led to back pay totalling £770m to date. It has, David points out, been the ‘largest redistribution of wealth in Glasgow’. Progress has been achieved by action and negotiation, but the context is the established law on equal pay. 

Using legal arguments and knowledge to protect employment rights was a key task in the Brexit fallout. A particular flashpoint was measures set out in the original EU Retained Law Bill. In 2022, the bill contained a ‘sunset’ clause, whereby legislation with an EU origin that was not identified by government ministers as meriting retention would cease to be UK law, with (estimates varied) between 2,400 and 3,800 pieces of legislation affected. 

That cocktail of sweeping ministerial powers, which would have allowed changes to the law without primary legislation, and the prospect of swathes of legislation simply lapsing was highly controversial. In November 2022, alongside the TUC, David gave evidence to the Retained EU Law Bill committee. 

‘It had such massive implications for employment lawyers, and for workers and employers,’ she recalls. The task in speaking with the committee, and in the wider political and media debate, was ‘trying to just correct what were some absolutely magnificent misconceptions… no one knew what would fill in the void’. 

'You need to frame your question within the restraints of the law. And that’s not always the same as what you might feel is seeking justice'

From the bill’s supporters, there was ‘complete disengagement with the vastness of it,’ she believes. ‘We are a country without a written constitution, but our laws are here, there and everywhere. It’s a tapestry. And so to try and disentangle yourself is a really hard thing and it requires a lot more time than someone saying, right, on 31 December [2023] it’s all going to go.’ 

David highlighted specific examples for the committee – annual leave, maternity and paternity rights, and TUPE (transfer of undertakings) protections that applied to outsourcing deals. ‘If these provisions are sunsetted, it will strip out some very basic employment rights,’ she said. 

What was also unclear, she says, was how the government’s proposed approach sat with the UK’s common law system, which relies on precedent. Like the House of Lords before it, the Supreme Court is the only UK court that is not bound by precedent. 

Where the law was unclear, either ‘everything goes to the Supreme Court,’ which would have begged the question: ‘How is this going to be resourced?’ Or the courts would have said, ‘this is for parliament’. Which, again, would have raised questions about how the ‘vastness’ of the task would be dealt with. 

Arguments from trade unions actually aligned with the position of employers’ representatives and industry bodies. In May 2023, the government caved, and the sunset clause was removed.  

Judgment day

Joining the judiciary, we agree, is a different proposition – not just a step up from litigation. ‘But I’ve always believed in reviewing something fairly and taking it for what it is, trying to resolve a problem. So it was a natural next step,’ she says. 

Mentors she credits in her career have taken judicial roles. Bronwyn McKenna, ‘who was our former director of legal services, who’s currently a judge,’ is one. Michael Ford KC, now a professor of law and a deputy High Court judge, is another. ‘In a nerdy way,’ David concludes, ‘I like the law and like to make sense of it. There is something quite neat and musical about it, [and] I’m a musician. It’s about trying to resolve something within the confines of a system.’ 

Photographs by Darren Filkins