Blacklisting



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.