Employment tribunal claims based on the Blacklist Regulations

Under Regulation 7 of the Blacklist Regulations, workers have three months from the date of the act complained of in which to bring a claim for compensation in the Employment Tribunal.

Very few successful claims have been brought under the Blacklist Regulations.

Failure to comply with the strict tribunal time limit for bringing claims is reported to be a main reason why so few cases have succeeded, with workers waiting too long before instructing a solicitor.

Another problem with the legislation is its failure properly to protect agency workers, as opposed to the directly employed. Agency workers are particularly common in the construction sector.

In January 2014, Dave Smith lost his appeal against the employment tribunal ruling that said that he could not bring a claim of blacklisting against his employers Carillion, because he was not employed by them. The Employment Appeal Tribunal upheld the original decision saying that Mr Smith did not have legal protection against blacklisting as he was an agency worker though the appeal judge acknowledged that he had “suffered an injustice from blacklisting”.

Dave Smith responded by saying: “Blacklisting is a violation of human rights. We intend to fight this all the way to Europe until we achieve justice. My heroic legal team are already preparing their appeal.” (Smith v (1) Carillion (JM) Ltd and (2) Schal International Management Ltd [2014] UKEAT 0081/13/1701).

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; and

• blacklisting to be a criminal offence.