In Black History Month we celebrate people making history today. So we sat down with Shantha David, one of many Black women making history at UNISON, to find out how she is fighting for equality, helping to make members’ lives better – and actually changing the law.
Shantha, why are you proud to be heading UNISON’s legal services team?
We may be a small in-house team, but we are an award-winning team running strategic, ground-breaking and cutting-edge litigation and managing a comprehensive external legal service for members.
As a team, we have had many successes for our members, from our four-year battle to eradicate employment tribunal fees at the Supreme Court to our recent national minimum pay victory setting the standard for calculating pay for low-paid home care workers and obtaining £55m (and counting) for term-time members in schools over miscalculated annual leave payments.
This is not to forget all our precedent-setting, Supreme Court rulings on equal pay, working time and holiday pay.
These decisions have changed the lives of mainly low-paid workers in the UK and that is our aim.
In addition, as campaigning lawyers we have been at the forefront of campaigns ensuring access to justice for our members and have actively minimised the effects of some of the government’s harsher changes that would have made it harder to tackle injustices against employers.
That is why legal services remains one of the main reasons that members join UNISON.
We celebrate your achievement, but why aren’t there more Black women at the top of the legal profession?
Yes, we are a bit of a novelty really across the profession. Stephanie Boyce was inaugurated as the 177th president of the Law Society of England and Wales last week – and she is only the sixth female and the first Black person to hold that post.
While this is progress, we have a long, long way to go.
And we are all responsible for making that change. Access to qualification needs to be available to all sections of society – something that is changing because the system of qualification has just changed.
We need to ensure that society sees child-care, caring responsibilities and flexible working being equally important for all genders, so that it is not simply a woman’s problem, resulting in career progression being postponed or unachievable. And it is important to see role models for women of colour.
The Law Society’s Race for Inclusion report saw that Black solicitors make 3% of the profession while Asian solicitors make 10% of it. Retention rates in large city firms is low, with Black or Asian lawyers heading to small or regional firms or in-house.
What’s your stand-out win for UNISON’s legal team?
It has to be the Employment Tribunal fees case that I ran for UNISON for over four years.
We challenged the lawfulness of the Fees Order imposed by the Lord Chancellor for bringing claims in the employment tribunals and employment appeal tribunals. After several hearings, the UK Supreme Court – the highest court in the UK and Northern Ireland – decided that the fees regime was unlawful because of its chilling effects on access to justice, and that the government would have to repay £35m in fees paid by individuals (or trade unions and others on their behalf).
What was magical about this case was that the Supreme Court enshrined the principle that the constitutional right of access to the courts, which is essential to the rule of law and is guaranteed by Magna Carta, was breached by the Fees Order.
Essentially, the Fees Order was found to be an unlawful interference with the common law right of access to justice – as well as it being unlawful for failing to provide an effective remedy for breaches of rights granted by EU law and being indirectly discriminatory against women in its application.
Leaving aside the headline grabbing ones, what are the most common cases?
Personal injuries, road traffic accidents, unlawful dismissal, unlawful deductions of wages and discrimination are personal injury and employment law cases that are commonly brought on behalf of members.
Currently of the employment tribunal cases being run by UNISON in the employment tribunals, 21% involve allegations of race discrimination. This is a huge achievement for us as a union.
As it is Black History Month, it’s worth noting that, while never letting up the pressure on challenging racism in the workplace discrimination cases and particular race discrimination cases are hard to evidence and prove, especially as racist incidents can be subtle and not often tangible.
The scope of the law requires you to show less favourable treatment by comparison with someone not of the same race. Bringing a race claim requires persistence from those bringing the claim, as their full participation is needed, details of how the matter affected them, and good evidence to show the acts of discrimination.
There is only so much that a lawyer can do – all of UNISON is needed. We are all UNISON, whether you are the member, the branch or the region, or someone at head office. Everyone’s full involvement and ownership of the case can be the difference between winning and losing.
What needs to change so UNISON members don’t have to face this?
When the Race Relations Act 1976 came into force, it was a step in the right direction, but as I have said the current legal framework doesn’t easily identify acts of race discrimination.
The public sector equality duties can be a tick box exercise, and the Equality and Human Rights Commission has been slow to identify and penalise organisational failures of discrimination. Some organisations proactively look to ensure equality. Others avoid self-inspection, make excuses for bad behaviour, or find excuses for it, rather than to listen to a person’s actual experience.
This doesn’t mean we stop fighting, but it does mean that we keep talking about discrimination, ensure that at least everyone has equality training, and support those facing discrimination. We are all responsible, and we all need to work together to ensure lasting change.
It must be tough at times. What keeps you going?
If we don’t do it, no one else will.
What would you say now to your 20-year-old self?
Dream big. Sleep more. Worry less. Oh – and stop wearing those ridiculous heels!