Blacklisting and data protection 


Anti-blacklisting laws, the Employment Relations Act 1999 (Blacklists) Regulations 2010 (the Blacklist Regulations), were enacted in March 2010. They were introduced following the discovery by the ICO, in February 2009, of the secret blacklist of over 3,200 construction workers maintained by The Consulting Association and shared among construction companies to deny employment to those on the list. 


Broadly speaking, the Blacklist 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 that contains details of individuals who have been or are 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)).


Individuals or unions can pursue compensation or solicit action against those who compile, distribute or use blacklists.


Despite the devastating impact of blacklisting on workers and their families, many of whom were unable to find work in the construction industry after being blacklisted, there has only been one prosecution to date. In July 2009, manager of the Consulting Association, Ian Kerr, was fined just £5,000 with £1,187 costs for breaches of the DPA. None of the companies that accessed the blacklist (whose names are listed on the ICO website) or any of their directors have suffered any penalty.


There have been very few successful claims for blacklisting using the Blacklisting Regulations. Under Regulation 7, workers have just 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.


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.


Instead blacklisted workers have turned their attention to the High Court, and are currently running several successful high profile group actions against blacklisting companies, with the support of their unions. Information about the progress of the litigation can be found on the Blacklist Blog, supported by health and safety campaigning group Hazards.


At government level, in Scotland, measures have been taken since November 2013 to use public procurement powers to try to eliminate blacklisting from the supply chain and to punish blacklisters where they are uncovered. In Wales, the Welsh government has issued an Advice Note calling on all Welsh public bodies to use procurement to eliminate blacklisting. 


In March 2014, the European Parliament voted to make blacklisting on grounds of trade union membership or activities unlawful across Europe.