In the last ten years, a number of new, ‘independent’ trade unions have emerged in the UK that appear to embody nascent, radical potential. This apparent radicalism is largely a product of the fact that, because the structure and composition of these unions deprives them of access to the legal institutional frameworks regulating trade union activities, they enjoy greater autonomy when it comes to their organisation, goals, and tactical choices.
The result is a model of trade unionism which is more member-led and democratic, tends to mobilise in traditionally unorganised sectors in a wide range of productive and reproductive occupations, regardless of the formal legal (employment and immigration) status of their members, and to experiment with a range of tactics different from, and/or additional to, those preferred, promoted, and tolerated by the law.
Generally speaking, radicalism implies an orientation to social change that, rather than seeking out changes within the co-ordinates of the existing system, organises instead around the goal of transcending, or changing, the basic structure of that system. This radical orientation to social change – largely abandoned by the UK trade union movement since at least the 1970s – is rooted in a recognition that the social problems facing society are structural in origin; that they are, as a result, inseparable from the basic organisation of production and reproduction in that society, making a reorganisation of such processes imperative.
Rather than pursuing short-term gains for their members as ends in themselves, radical organisations tend to select their shorter term goals, and make their tactical choices, in light of an assessment of their likely contribution to the longer term struggle for structural transformation. This means prioritising those goals, and those tactics, that can help build awareness of the structural causes of social problems; of how these causes are related to people’s shared class position, and the various other problems and conflicts which they confront; and of how, and why, it is only by uniting on the basis of class that these problems and conflicts can be effectively overcome.
Because law is complexly bound up with the structures, and practices, of capitalist society, helping to project, and legitimise, the world view and mode of subjectivity that is integral to them, the role of law in a radical political strategy is highly contested. Given that another common feature of these unions is their willingness to frame their shorter term goals in legal terms, and to rely on legal tactics, such as litigation, to advance their short and longer term objectives, it is not clear whether the radical potential of these unions will be realised.
To illustrate this point, the rest of this post will explore the political implications of the ‘employment status’ litigation of the ‘independent’ union, the Independent Workers’ Union of Great Britain (‘IWGB’).
The IWGB and Employment Status Litigation
A core aspect of the IWGB’s strategy has been its attempts to challenge the contractual designation, by employers such as Uber, Deliveroo, and Local Councils, of its members as independent contractors, excluding them from access to labour law rights and protections. These challenges are deemed to be beneficial to organisations like the IWGB not so much because of their effects on the rights, and conditions, of particular individuals, but because of their capacity to contribute to the unions’ broader goals of mobilisation and organisation.
There are a number of elements of this: first, because ‘employment status’ functions to provide individuals with access to both individual and collective labour rights, it can help minimise the risks involved for them, and their unions, in engaging in various forms of collective action; second, it can provide them with access to the various legal institutions established to facilitate collective bargaining between unions and employers; third, it can help improve the material position of workers in ways that can better empower them to take part in collective political activity; and finally, it can also help to build solidarity between apparently diverse groups, to establish a common identity and sense of common interest, while providing a legitimising narrative around which different groups can coalesce.
While these potential advantages of employment status litigation may well be valid, they overlook some of the risks attendant upon relying on law to advance – even if indirectly – radical political struggles:
Law is not a neutral instrument that exists to mediate conflicts in the name of the general interest. Rather, law is the product of past conflicts, and itself is expressive of the balance of power that pertains in capitalist society, a balance in which the interests of capital systematically predominate. Thus, the legal framework that today regulates unions and their members is not politically neutral, but reflects an accretion of attempts by successive governments to intervene in capital-labour conflicts to minimise the threat such conflicts pose to the stability and legitimacy of the system. The result is a legal framework that embeds within itself a set of material compulsions that systematically encourage trade unions to structure themselves, and channel their activities, into forms which pose minimal threat to capitalist social relations.
It is not, therefore, straightforwardly advantageous for a union, such as the IWGB, to identify as one of their shorter term goals recognising their members as ‘workers’ entitled to rely on, and gain access to, the various rights, protections, and institutions, that form part of this legal framework, and which shape the pursuit, by traditional trade unions, of their objectives. While doing so may well help insulate their members from the various legal risks attendant on organisation and industrial action, it does so at the direct expense of exposing them to the very compulsions and incentives that have historically helped to de-radicalise trade unions over time.
Independently from this concern, the decision to use legal tactics to advance, or contribute to, the struggle for radical political change, is always inherently problematic, because of the way it reinforces and legitimises the abstract, depoliticised world view inherent in the law.
In order to engage in litigation, it is necessary to frame a problem, conflict, or dispute, in legal language. This means participating in the reproduction of the world view, and mode of subjectivity, that legal language projects. This is a world view, however, in which relations between individuals appear in abstraction from the structural contexts in which they exist, as relations between formally equal and free legal subjects, and in the context of which problems and conflicts appear as if they originate in the actions and decisions of such subjects, rather than as a product of the incentives, and opportunities, to which the structures in which they are embedded give rise. This has the following important consequences:
First, engaging in litigation means legitimising and serving the reproduction of a world view in which the structural linkages that exist between different problems, and conflicts, is obscured, helping to fragment collective struggles, while, at the same time, valorising law as an adequate solution to those problems, undermining momentum for wider, structural change. Even if, following the declaration secured by the IWGB, by the Supreme Court, that Uber drivers are ‘workers’ entitled to labour law protections, Uber were to comply perfectly with its labour law obligations, this would still leave untouched the structures that generate the incentives and opportunities that exist for employers to misclassify workers, and to do everything they can to reduce costs, and maximise profit, regardless of the impact on workers and society.
Second, while presenting legal arguments in favour of the recognition of occupationally diverse groups – such as Uber drivers and foster carers – as workers, may well help reinforce the idea that such groups share a common identity, and status, with all other ‘workers,’ it does so at the price of endorsing the abstract way in which the law constructs the basis of that common identity and its link with labour law.
In law, workers are defined not by reference to their class position, their relationship with the means of production, but by reference to the structure of the contract by which they happen to be hired. This framing presents the common interests of workers as fundamentally contingent, and the origins of the risks to which workers are exposed as if they are a product of the structure and rights in the contract between them and their employers, rather than in wider class relations. It also potentially legitimises the exclusion from that common identity of all those who occupy the same class position, but who do not happen to be hired under the same ‘sort’ of contract in practice- inhibiting the formation of a class-based political consciousness.
If new independent unions such as the IWGB are to realise their nascent radical potential, it is thus imperative that they engage with the challenges that exist in incorporating law into a radical political strategy.
Zoe Adams is Admissions Tutor and Law Fellow at King’s College, Cambridge, and Affiliated Lecturer in Law at Cambridge University. She is the author of two monographs, Labour and the Wage: A Critical Perspective and The Legal Concept of Work, each published by Oxford University Press.
To read more, see Zoe Adams. ‘Legal Mobilisations, Trade Unions and Radical Social Change: A Case Study of the IWGB’ in Industrial Law Journal 2023.
Image: Kheel Center via Flickr (CC BY 2.0)