In the eye of the storm

With the Bar’s invaluable pro bono, workers’ union IWGB packs a punch well above its weight as a key intervenor and ambitious litigator. Peter Oldham QC talks to its general secretary Jason Moyer-Lee

What might attract someone new to pro bono, say an entrant to the profession looking into it for the first time? For most pro bono practitioners, there is a wish to help a few of the vast number of people in our society who cannot otherwise afford legal advice. As has often been remarked by our senior judges, and as Lord Neuberger again reminded us in his valedictory words to the Supreme Court on 28 July 2017, access to legal advice and to the courts is a sine qua non of the rule of law.

A case study: the IWGB

But it goes well beyond that. It’s not a case of the Bar grandly distributing its largesse as some remote philanthropist might.

Curious to find out what practitioners get from the experience, I press the entry buzzer to regular pro bono beneficiary, the Independent Workers’ Union of Great Britain (IWGB). At the door to this non-descript office block on a side-street off the Pentonville Road, I soon realise that this is no ordinary union. For next to the button appears the word ‘sindicato’, as well as ‘union’.

I go up a couple of floors to the union’s suite of offices, and the general secretary comes out to greet me. Except again, everything defies your expectations: the ‘suite’ is a handful of cheery rooms, festooned with posters and photographs of campaigns. The general secretary (whose office is about six foot square) is a genial and energetic 30-something from the US, Jason Moyer-Lee. Oh, and the entrance lobby, for some reason, has a ‘bed’ of gleefully colourful paper plants, about four feet high.

All this is both characteristic and deceptive. The small IWGB is light on its feet, quirky, but precisely because of this can pack a hefty punch – and does so through effective litigation in the courts. The emphasis on legal strategy to enforce members’ rights, and to change the law, is notable. But so also is the support which the union and its low-paid members havereceived from the pro bono Bar; support which, as Jason says, ‘has been invaluable’.

In its current incarnation, the union originally became something of a refuge for low paid workers at the London universities, many of them Latin American (hence ‘sindicato’). Because it was small it could apply pressure on employers specifically on their behalf and quickly achieved some notable victories. But then its reputation grew, and it is arguably the leading light – ‘in the eye of the storm’ as Moyer-Lee puts it – in bringing ‘gig economy’ issues into the legal arena, and indeed onto the front pages of our newspapers. It has won numerous cases, some where employers threw in the towel before the hearing, to the effect that couriers are not independent contractors in business on their own account but have rights as ‘workers’. This is significant because workers are entitled to the minimum wage, holidays, rest breaks and other rights.

At case law’s cutting edge

While not sacrificing ‘bread and butter’ cases for members, both in negotiations with employers and in the employment tribunal if need be, the IWGB is notably ambitious in the way it bring its members’ rights to the attention of the courts. Here is where the union’s speed of reaction and the pro bono Bar have partnered each other so effectively. For instance, the Supreme Court gave the union permission to make written submissions in Miller v SoS for Exiting the EU [2017] UKSC 5, and in its comprehensive quashing of the employment tribunal fee structure in July (Unison v Lord Chancellor [2017] UKSC 51). It awaits judgment in a reference to the Central Arbitration Committee for union recognition at another courier company – which involves consideration of the employment status of the workforce. In this way consulting with specialists at the Bar for free has allowed the union to bring cases using new and imaginative contentions, and has given practitioners the opportunity to present arguments at the forefront of legal developments.

As Moyer-Lee says, ‘It’s unusual for a union to have such a focus on legal strategy. We’re starting to see an impact in the gig economy cases. We’re starting to see changes.’

Moyer-Lee is not a qualified lawyer himself – his knowledge of the law has been gleaned through his activities for the union. But he’s very quick and bright, and he intersperses our discussion with musings on possible county court claims for breach of Art 11 of the European Convention on Human Rights, and the costs regimes of the different CPR case tracks.

Returning to the assistance given by the pro bono Bar, he explains that while sometimes the union instructs through a solicitor, also acting pro bono, he can instruct direct because he has obtained a licence to do so from the Bar Standards Board. ‘The experience has been so positive. We have had hundreds and hundreds of hours of free legal advice.’ The IWGB makes applications for grants from legal charities and similar organisations, and has had no small measure of success. ‘But the free advice is by far the biggest source of assistance. Far bigger than any grant. It may be worth over a million to be honest.’

It’s refreshing and cheering to listen to such praise and enthusiasm for our profession and to hear that colleagues at the Bar put their vocation and their skills, their goodwill and their time, to the service of others who simply could not afford to get the legal advice they need, let alone advice of that quality. It makes a real difference.

‘For every case, we could find someone to do it. And if a question arose, we could get advice in 24 hours.’

Two-way street

The spirit and warmth he shows towards our profession is reflected in the experience of one of the practitioners, amongst many, who have helped the union out in this way. Adam Ohringer, at Cloisters, is involved in a number of cases for the IWGB. They involve claims of unlawful deduction of wages, employment status and TUPE.

‘I’ve been really impressed by the IWGB and Jason’s approach in particular. He has managed to harness such a strong body of specialist legal expertise.’ Echoing an aspect of the IWGB’s approach which has struck me, Adam adds, ‘I have been particularly attracted by the IWGB’s emphasis on establishing and enforcing employment rights through litigation while leaving the party political issues to others. The IWGB represents some of the most vulnerable and most exploited workers in the UK. Rather than get bogged down in the politics of the situation, they support their members’ claims for basic rights.’

Pro bono is not a one-way street. Adam’s colleague in chambers Sally Robertson notes, ‘It’s challenging and stimulating working with such an enthusiastic group of people, and doing a case for particularly disadvantaged workers can have a much greater effect in changing attitudes than in most other cases. It hammers home the importance of being able to enforce basic rights. Basically, in some working environments, every case is a test case!’ Furthermore, as we’ve seen, the union is pushing for developments in the law. For Adam and Sally, pro bono dovetails with what they do as employment law specialists. ‘The IWGB brings cases at the cutting-edge of legal developments,’ says Adam. He gives an example. ‘I am now engaged in a new claim,’ (and he loyally mentions his leader and also that this is one of the cases where the union has pro bono solicitors on board) ‘where the IWGB is looking to establish that workers, and not only employees, have rights under TUPE.’ The sense of excitement about these interesting legal developments is palpable.

Find your fit

Though I’ve concentrated in this article on the IWGB and those helping it, this is just a case study for how the pro bono bar can help people, and how rewarding practitioners can find pro bono work of any type. Taking up this theme, Adam says, ‘The IWGB is just one of many organisations requiring pro bono assistance. Every barrister can find an organisation which needs legal assistance on a pro bono basis or which supports individuals who do. What any particular barrister can offer and the type of organisation they would wish to work with will vary but the need is very much out there.’

The people ‘out there’ to whom Adam refers, and who perhaps as yet know nothing about the free help barristers give, may themselves one day echo how Moyer-Lee sums up the IWGB’s experience: ‘For us, the pro bono Bar has been fantastic.’

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Peter Oldham QC

Peter was called in 1990 and practises at 11KBW in the fields of  public, employment, education and procurement law.