Anti-union blacklists

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

The regulations also make it unlawful for employers to make decisions about recruiting or dismissing anyone on the basis of an anti-union list, and unlawful for agencies to decline to assist someone because they are on such a list. Anyone who finds that they are on a blacklist (as well as the relevant unions) will have the right to bring a claim. Also, even if some of the individuals were not union activists or members (e.g. were on the list simply because they were viewed as troublesome by the employer) they too will have a claim.

In September 2010, construction contractor CB&I was found guilty of blacklisting Unite member Phil Willis, 61, who was awarded £18,375 in damages, including £2,000 in “aggravated damages” because CB&I made use of the blacklisting service provided by The Consulting Association. Mr Willis submitted an application to CB&I for work as a steel erector on the Isle of Grain project in 2007. Although his application was acknowledged, he was not contacted again.

According to TUC reports, in 2011 another tribunal found Balfour Beatty Engineering Services Ltd guilty of refusing site worker Paul Tattersfield employment because he was also on The Consulting Association blacklist. The tribunal awarded him just under £24,000 for loss of earnings, injury to feelings and aggravated damages.

The regulations have been criticised as defective in a number of important respects. For example, the protection of agency workers under the regulations is inadequate. This was illustrated by the case of blacklisted engineer Dave Smith, who received no compensation under the regulations despite an admission by the employer that they had used a prohibited list. His claim failed because he was employed through an employment agency (i.e. had no direct employment relationship with the company that had blacklisted him) (Smith v Carillion Plc, London Central ET 2012). His case is under appeal to the EAT and in February 2013 he was given leave by the EAT to pursue claims based on the breach of his human rights (Article 11: the right to freedom of association and Article 8(1), the right to protection of his reputation).

A complaint must be lodged at a tribunal within three months of the date of the behaviour complained of. Many claims have failed because tribunals have judged them out of time.

The employment tribunal has a discretion to extend a time limit where it was “not reasonably practicable” for the complaint to be presented within the three month period (section 139 TULRCA), as long as the worker has presented the claim within “such further period as the tribunal considers reasonable”. In practice, tribunals have taken a very strict approach to the time limit and workers must move very quickly — issuing the tribunal proceedings as soon as they discover their name on the blacklist, if they want to bring a claim. For more information see Update on Blacklisting, OH Parsons, Solicitors, Institute of Employment Rights, 2011.