LRD guides and handbook July 2017

Health and safety law 2017

Chapter 4

Blacklisting



[ch 4: pages 75-78]

The anti-blacklisting laws, the Employment Relations Act 1999 (Blacklists) Regulations 2010 (the Blacklist Regulations), became law in March 2010. They were introduced following the discovery, in February 2009, of a secret blacklist maintained by The Consulting Association (TCA). Its blacklist, naming more than 3,200 construction workers, overwhelmingly trade unionists, was uncovered in a raid by the Information Commissioner’s Office (ICO). The information on the blacklist, built up over decades, was secretly shared among 44 of the largest construction employers in the UK and was used to deny employment to those named on the list.



The Blacklist Regulations make it unlawful for trade union members to be denied employment through the use of blacklists and they ban the compilation, dissemination and use of blacklists. It is unlawful to refuse employment or sack someone because their name appears on a blacklist. It is also unlawful for employment agencies to refuse to provide a service because someone’s name is on a blacklist. Individuals or unions can pursue compensation or solicit action against those who compile, distribute or use blacklists.



However, unions say the regulations are far too weak. Offences under the regulations are civil rather than criminal and rely on workers taking a case to an employment tribunal where the remedy is financial compensation. By its very nature, blacklisting is secretive and difficult to prove and many cases have not made it as far as a tribunal due to strict time limits in bringing forward a case. In addition, the regulations have failed to protect agency workers who are not directly employed. Agency workers are particularly common in the construction sector.



Blacklisted engineer Dave Smith lost his claim for blacklisting against Carillion because he was not directly employed by the company, even though the appeal judge acknowledged that he had “suffered an injustice from blacklisting”(Smith v Carillion J.M. Limited [2015] EWCA 209).


The case went all the way to the European Court of Human Rights, but because of the select committee investigation and the historic High Court settlement (see Box on pages 77-78), Smith reported that the court said his case had been “duly considered” by the British legal system and his claim was therefore declared “inadmissible.” Writing in the Morning Star newspaper in May 2017 he said: “The ECHR ruling means that that even where human rights have been breached, agency workers remain unprotected by British employment law”.


Calling on the next government to bring in legal changes he added: “My ECHR ruling is a green light to bad employers. If judges in the UK and the ECHR can’t protect agency workers, then the only way to improve the situation is by the next government passing statutory legislation to do away with the artificial distinctions between different categories of workers and grant the same basic employment rights to everyone in the workplace.” The time limit for this kind of claim is also very restrictive. 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. Failure to comply with this strict time limit is one of the main reasons why so few cases have succeeded. The regulations have not been an effective way of punishing blacklisting.



Unions and the Blacklist Support Group say that blacklisting should be a criminal offence, in the same way that breaches of health and safety laws at work are criminal, subject to criminal sanctions including prison sentences and enforced by the police or ICO who have the authority to seize documents.



In Scotland, from April 2016, it has been a legal requirement for public bodies to exclude businesses which are found to have breached the Blacklist Regulations 2010, or which have admitted to doing so, from participation in any procurement procedure. The ban will remain in force until the business has taken appropriate remedial measures, or a period of three years has elapsed since the blacklisting occurred, which is the maximum timescale allowed under European Union law.


Court victory for blacklisted workers though fight goes on


The Blacklist Support Group (BSG) and trade unions waged a long battle for justice for blacklisted workers and in May 2016 won a multimillion pound compensation settlement just before a High Court trial was due to begin.



They brought their cases against construction companies Balfour Beatty, Carillion, Costain, Kier, Laing O’Rourke, Sir Robert McAlpine, Skanska UK and VINCI and they included claims for misuse of confidential information, breach of the Data Protection Act 1998, unlawful means conspiracy, breach of privacy and defamation. They concerned 30 years of blacklisting activities by these companies, the Economic League and the Consulting Association.



The total value of settlements for union members and blacklisted workers represented by law firm Guney, Clark and Ryan, was around £75m for 771 claimants including legal costs on both sides estimated at £25 million.


General union Unite says it is continuing to fight for justice for the victims of the scandal and is compiling a dossier on contemporary blacklisting. This contains potential cases of blacklisting on major flagship projects, with employment agencies responsible for most onsite recruitment appearing to be operating their own blacklists. The union wants the ICO to re-open its investigation into blacklisting.


As part of the High Court case, the blacklisting companies agreed to provide re-training for their victims who wanted to return to the industry but who needed their skills and qualifications to be updated, in order to find work. However, Unite says that a year on from the end of the High Court case despite ongoing union pressure, none of the blacklisted victims have received the training they were promised.


“The blacklisters are showing contempt for the legal system and are exploiting loopholes, proving that they have not learnt anything from this scandal as they continue to delay and prevaricate in providing the training they are required to provide for their victims,” said Unite assistant general secretary Gail Cartmail.


In addition, Unite says victims of the Consulting Association blacklist are continuing to come forward and it is in the process of beginning a fresh court case and representing over 60 members. The union continues to call for a full-scale “Leveson-style” public inquiry into blacklisting, so that the full truth behind the scandal, including the involvement of the police, security forces and the state can be revealed. Further developments in the anti-blacklisting campaign can be found on the Blacklist Support Group blog at www.hazards.org/blacklistblog.


The Information Commissioner’s Office has set up a web page for those concerned that they might be on the blacklist: https://ico.org.uk/for-the-public/construction-blacklist.