Mobilizing Anti-Discrimination Law to Implement New Rights. the Incomparable Legal Strategies of British and French Trade Unions

This paper intends to look into the implementation of the successive European Equal Treatment Directives since 1976 in France and the UK, on two different grounds - union discrimination for France and equal pay for the UK. In the two countries, driven by policy making at the European level, statutory intervention in the employment relationship has grown significantly providing new anti-discrimination rights to employees. However, many scholars have argued that increasingly complicated legislative structures and norms have not ensured direct compliance in the workplace and that more research should look into the mechanisms, institutions and processes for rights enforcement. This paper will focus on the under-researched role of trade unions in the mobilization of law and their exceptional ability to use litigation in a "counter-hegemonic" manner to improve low-paid women’s and trade unionists’ rights. If litigation patterns differ from one country to the other, we will reflect on the conditions under which some trade unions have been able to develop repeat-player organizational capacities thanks to the conviction and tenacity of rank-and-file activists, the help of legal experts and the backing of decisive court rulings at the national and European levels. Differing national legislations and judicial cultures - more or less progressive or adversarial - do explain trade unions’ fluctuating inclination to turn to the courts, but this research also reveals that they can decide to litigate on behalf of their members for other reasons than the prospect of winning their legal case.