Final Report Summary - TUDISMO (TRADE UNIONS, DISCRIMINATION AND LEGAL MOBILIZATION : MAKING RIGHTS EFFECTIVE) This project is based on a cross-national and cross-organizational comparative analysis of the legal mobilizations led by trade unions to tackle discrimination, in France and in the UK, from 1970 to 2016. It looks into the under-researched but strategic role of trade unions in the getting and enforcement of statutory rights in relation to sex, gender and other forms of discrimination. By reflecting on the conditions under which trade unions are likely to mobilize legally on behalf of their members and act as “bridging institutions” between the legal system and the organizational field, this research addresses issues key to contemporary policy and academic debates exploring the effectiveness of different mechanisms of rights enforcement and the potential of reflexive regulation, but also some of its limitations. It draws on a mix of qualitative methods, following the principle of triangulation between secondary sources, documentary sources and semi-structured interviews. First, the research provides a rich empirical material to reflect on the potentialities and pitfalls of employment and antidiscrimination law implementation in both countries. The comparative study shows that individual employment tribunal claims supported by trade unions are numerous and that their number has grown significantly over the years, in both countries. Unions act as support structures with strong financial resources and tend to characterize their members as right-holders, two conditions that theoretically encourage litigation strategies. However, collective litigation, including the use of European courts, remains a very unusual repertoire of action for trade unions. Reasons for this weak usage of strategic litigation can be found in shared cultural frameworks regarding the role of trade unions and the value attributed to collective bargaining as a preferred repertoire of action, in both countries. Other explanations can be found in the difficulties trade unionists have to grasp the potentialities of legal concepts, especially when derived from European law, to challenge discriminatory employment practices. Second, in a more contextualized perspective, the research highlights the crucial role of workplace power relations in shaping unions’ rights mobilizations. The case of equal pay in the UK since 1975 shows that, depending on periods and industrial contexts, litigation has been facilitated or even encouraged by employers’ weakness, ignorance or goodwill, or opposed by their adversarial strategies. Unions’ reluctance to litigate can be found in the fear that litigation might increase employers’ intransigence or forces them to resort to jobs and service cuts. It also reveals the difficulties unions can have to represent the competing (gendered) interests of their diverse membership. On the contrary this unwillingness to mobilize the courts can be analysed as an indication of a more constructive type of employment relations where trade unions rely on a very high level of membership density and can still benefit from national or sectorial collective agreements. This complicated articulation between litigation and collective bargaining, sometimes seen as complement or substitute, calls for for a nuanced and contextualized analysis of possible “recombinant legal strategies” for trade unions.Third, this research offers a better understanding of the role of unions and HR professionals in the co-construction of internalised responses to discrimination law, depending on organizational contexts and time periods. By focusing on the case of union discrimination, the research shows that organizational responses to legal norms need to be understood within the broader context of the dynamics of employment relations. In France, the state has encouraged the promotion of a “social dialogue culture” that has taken the shape of an incentive for employers to formally engage with trade unions in the implementation and creation of legal norms and rules through collective bargaining at the workplace level. This process of law internalisation, which has taken place in a context of declining union density, has been welcomed by most trade unions, even if it has not eliminate employers’ formal recourses to law to discipline and dismiss union activists. On the contrary, in the UK, the weakened position of trade unions in the policy making process, their declining membership and the narrowing of collective bargaining coverage has pushed unions to ally forces and support few highly symbolic union blacklisting cases to raise legal consciousness amongst HR professionals and enforce employment rights. In both cases, this research points out that law mobilization, whether through litigation or collective bargaining, can help challenging entrenched beliefs about work, trade unionism and gender. This project clearly contributes to enrich the academic and public policy debates on the conditions under which legal rights have meaning and impact. It questions the relevance, efficiency and articulation of European and national public policies and legislations in the field of employment rights, and contributes to the broader debate on the potential of reflexive regulation, but also some of its limitations. From a more pragmatic perspective, this project also contributes to the improvement of HR practices and industrial relations within European firms, promoting fairness and inclusion.
