Anti-union blacklists

Anti-union blacklists are outlawed under the Employment Relations Act 1999 (Blacklists) Regulations 2010. The regulations ban the compiling, supplying, selling or using of lists of trade union activists and members, with the purpose of discriminating against those individuals.

Broadly speaking, the regulations:

• ban the compiling, supply, sale or use of a “prohibited list” (regulation 3(1));

• make it unlawful to refuse employment to a job applicant, dismiss an employee, or subject an employee to any other detriment for a reason related to a ‘prohibited list’ (regulation 5); and

• make it unlawful for an employment agency to refuse to provide services to an individual for a reason related to a ‘prohibited list (regulation 6).

A prohibited list is a list containing details of individuals who have been or are either trade union members, or who have taken or are taking part in trade union activities. It may be of any length, but it must have been compiled with a view to being used by employers or employment agencies for the purpose of discriminating, either in recruitment or during employment, on the grounds of trade union membership or activities (regulation 3(2)).

In Maunders v Proteus Services Limited [2013], Employment Tribunal unreported, a first instance (i.e. non-binding) case involving a contractor at the Lindsey Oil refinery, a tribunal ruled that the refinery’s “security watch list” maintained on its database was not a prohibited list, because it was compiled for a legitimate reason — to prevent access to the site by individuals regarded as a security threat, rather than to discriminate for a union-related reason.

In Miller v Interserve [2012] UKEAT 0244/12/0512, the EAT “left open” the possibility that a purely mental list, in the mind of the employer, could be a prohibited list.

In Maunders, the tribunal ruled that contrary to BIS guidance, a blacklist can be unlawful even if those on the list took part in unofficial, as opposed to official action.

The anti-blacklisting regulations have a number of important weaknesses. For example:

• the protection of agency workers is inadequate. In Smith v Carrilion (JM) Limited [2013] UKEAT/0081/13/MC, blacklisted engineer Dave Smith was left without remedy despite an admission by construction giant Carillion that they used an unlawful blacklist. His claim failed because he was employed through an employment agency (see page 67);

• in Maunders v Proteus Services Limited, ET 2013 (see above), an employment tribunal ruled that a list is only prohibited if its purpose is to enable an employer to discriminate against its own workers. In other words, this ruling (although non-binding) suggests that a list intended to enable an employer to discriminate against someone else’s workers on trade union grounds is not prohibited;

• many claims have been dismissed on the basis that they were filed with the tribunal too late. Under regulation 10, a claim will be out of time unless it is issued within three months starting from the date the blacklisting took place. Tribunals have a discretion to extend time when it is “just and equitable”. In practice, many years have usually passed between the blacklisting incident and the worker finding out about it. Even so, tribunals take a very strict approach to the time limit and many claims have failed because tribunals have ruled that workers did not act fast enough to issue their claim after discovering their name on a blacklist. In practice, anybody in this position who wants to take action should not delay and should immediately contact their union.

The Institute of Employment Rights has called for the anti-blacklisting regulations to be strengthened and in particular for:

• a positive right not to be blacklisted;

• an automatic right to compensation for workers who find themselves on a blacklist without the need to establish loss;

• a retrospective compensation scheme to compensate blacklisted workers;

• blacklisting to be a criminal offence.