Duties owed by solicitors and trade unions

Published 6 May 2021

The case of Langley v GMB & Ors [2020] EWCH 3619 QB provides useful guidance on the duties owed by solicitors and trade unions in employment matters.

Background

Mr Langley was a binman employed by Birmingham City Council and he was a member of his trade union, the GMB. Mr Langley was suspended from work by the council in 2014 pending an investigation for potential gross misconduct.

Exit negotiations with the council, conducted on Mr Langley’s behalf by GMB, led to the council making its “final best offer” which included one year’s tax-free salary in return for a voluntary termination of his employment. Mr Langley accepted the offer in principle, upon advice from GMB, and Trade Union Legal LLP solicitors were retained to advise him on the meaning and effect of the Compromise Agreement drafted by the council. That agreement was signed in early 2015.

Mr Langley subsequently brought a claim of negligence against his trade union and his solicitors. He considered their advice had been negligent and that he should have been advised to reject the offer since he considered he would have either retained his employment following a disciplinary hearing, or, if he had been dismissed he would have been successful in the employment tribunal.

Decision

There was no dispute that Trade Union Legal owed Mr Langley a duty of care to provide the advice of a reasonably competent employment lawyer on the matters on which they were instructed to advise and act under the scope of their retainer. The duty would be breached if the advice provided was advice that no reasonably well-informed and competent employment lawyer would have given. In the context of advice as to whether to accept settlement terms offered a claimant will usually need to prove that the advice is blatantly wrong in order to establish breach.

The court held the scope of Trade Union Legal’s retainer was to advise on the meaning and effect of the Compromise Agreement and they were not instructed to advise Mr Langley on the merits of the underlying case. This was clear from the advice given and the careful explanation of the solicitor’s role where it was made clear that they were specifically not advising on his prospects of succeeding in a claim but merely advising on what the terms would mean if signed.

With respect to the claim against the union, GMB accepted it owed a duty of care to Mr Langley, since it had assumed responsibility for representing and advising him in connection with his suspension from work and what might follow from that. The standard of care to be provided by the union was disputed, with the court noting there was limited authority on the precise standard of the duty of a trade union advising and acting for a member in an employment dispute with their employer.

It was held the standard of the duty owed by a trade union is to provide reasonable skill and care in the provision of practical industrial relations and employment advice. The duty included a general understanding of employment, HR, and industrial relations issues, to be reasonably well informed about employment law in general terms, to have a reasonable level of skill and expertise in persuasion and negotiation, to be able to provide strategic and tactical advice on how to seek to resolve a situation in the best interests of its member.

Mr Langley’s claim was dismissed. GMB had given reasonable advice and there was no breach of the union’s duty of care towards their member. Nor was there any breach of the solicitor’s duty of care towards their client.

Comment

This decision provides useful guidance on the duties owed by solicitors and trade unions in employment matters.