When UNISON won the employment tribunal fees case in the Supreme Court in 2017, the landmark victory thrust the union’s in-house legal team into the limelight.
After all, this small band of lawyers and assistants had won a David v Goliath battle against the government, which touched upon the fundamental principles of justice and will have a lasting impact for ordinary people way beyond the realms of labour law.
Not a bad day in the office. Well, around 1,600 days in the office. The case lasted some four and a half years.
UNISON’s current in-house team comprises four employment lawyers and one personal injury lawyer in London (and an employment lawyer in Scotland), two paralegals (unqualified lawyers) and two non-legal staff, all led by head of legal, Adam Creme.
While the outside solicitor firm Thompsons handles most of the personal injury and employment claims for individual members (winning millions of pounds in compensation each year), the staff team handles all appeals in the higher courts, as well as strategic employment law cases – often far-reaching actions that involve issues such as TUPE, equal pay and the national minimum wage.
They’ve had some significant victories, but perhaps none more so than The Queen (on the application of UNISON) v the Lord Chancellor, the formal title of the legal challenge to the employment tribunal fees.
When the fees were introduced in 2013 by former Lord Chancellor Chris Grayling, UNISON immediately saw that they would destroy peoples’ right to seek justice in the employment courts. Having decided to take the government on – a seemingly impossible task at the time – Adam Creme charged legal officer Shantha David to run the litigation.
UNISON head of legal Adam Creme
“I decided that Shantha would be a good fit. And what a good choice that proved to be,” he says. “She's a terrier, she gets her teeth into something and doesn't let go. She has a very strong attention to detail and an extremely strong work ethic.”
Shantha would need those attributes. UNISON’s single-handed battle to reverse the Lord Chancellor’s decision spanned six unsuccessful hearings – three in the High Court and three in the Court of Appeal – before the seven judges of the Supreme Court unanimously found in the union’s favour.
"We had a lot of people contacting us who wanted to say that what we were doing was great and that they strongly supported us."
“As solicitor teams go, ours [for the case] was small,” she recalls. “It was just me and my secretary Kate Osborne. And the legal papers we prepared ran to thousands of pages for each hearing.”
It seems that the shenanigans that feature on legal TV shows like Ally McBeal and The Good Wife are not so far from the truth – whether for Shantha it was endless government gamesmanship or one unsympathetic judge who told a government barrister in an early hearing: “I don’t understand what you’re saying, but I’m on your side.”
At the same time, when Shantha explains why UNISON was counting on the highest court in the land to do the right thing, it’s an evocative reminder of why the law, at its most idealistic, can be so thrilling.
“Our case was about access to justice. It's really odd, but you can’t use words like that in the lower courts – you can’t talk about Magna Carta or they’ll kick you out. But the Supreme Court is the law-making forum and judges can change the law. They can talk about Magna Carta, they are willing to discuss basic principles, the things you learn about in law school, justice, that you get all 'ooh, ahh' about.”
UNISON legal officer Shantha David
Adam observes that most employment lawyers are “lefties”, even if they work for massive commercial firms who act almost exclusively for employers. “They are not usually Tories, but have liberal or left-wing values. And an awful lot of them believe in access to justice,” he says.
“That was one of the very interesting things about this case. We had a lot of people contacting us, judges and people from big practices, who wanted to say that what we were doing was great and that they strongly supported us.”
"When we started doing this case I just wanted to get rid of employment tribunal fees. I could not have predicted it would become this enormous constitutional thing."
And so, as it turned out, did the Supreme Court judges, who declared that the fees order was “unlawful” because it prevented access to justice and “must be quashed”.
Says Shantha: “Their judgment is not just important for workers in Britain, but also for access to justice in other parts of the law where the government is trying to raise costs for ordinary people - for example in civil courts, where legal aid has pretty much gone, and in immigration tribunals.
“People are now looking at ways of targeting those areas using the UNISON judgement. That’s our legacy, which is brilliant.”
Adam has his own amusing view of the verdict. “It’s like that moment in The Italian Job, where Michael Caine says, ‘You’re only supposed to blow the bloody doors off.’
“When we started doing this case I just wanted to get rid of employment tribunal fees. I could not have predicted it would become this enormous constitutional thing, which will touch many, many areas of UK law.
“Special mention should be made of our lead barristers – Karon Monaghan QC, who was with us from the start, and Dinah Rose QC, who joined us at the Supreme Court and whose brilliant advocacy gave us an edge that the government’s lawyers could not compete with. We and our members owe them a debt of gratitude.”
Adam's team have scooped a number of awards for their work on the case, including being named The Lawyer magazine’s ‘best employment team’ in 2014 – back then, for the boldness of bringing the claim against the government. The civil rights organisation Liberty voted both Adam and Shantha ‘human rights lawyer of the year’. Also this year, UNISON won The Lawyer’s ‘litigation team of the year’ for its “great tenacity and perseverance and a result that makes a real difference to a great many people.”
Such awards aren’t won lightly.
Shantha recalls the day after the Supreme Court victory, when she was finally sitting alone at home – and duly burst into tears.
“I was so overcome. It was all the feeling of four and a half years of work – the grafting, the slog, the legal arguments, witness statements, the last-minute dashes to court. You’re so consumed by all of it. And you’re so tired.
“Winning or losing, it’s always a strange anti-climax. You've spent all this energy fighting for something, and then it's over.” She laughs. “It's like the end of a season of Game of Thrones.”