Anti-union blacklisting 




These are the main laws against anti-trade union blacklisting:


The Blacklists Regulations: Anti-union blacklists are outlawed under the Employment Relations Act 1999 (Blacklists) Regulations 2010 (the Blacklists Regulations). These regulations ban the compiling, supply, sale or use of lists of trade union activists and members, for the purpose of discriminating against them. 


The Blacklists Regulations were enacted following the discovery by the Information Commissioner in 2009 of a secret blacklist maintained by a clandestine organisation — the Consulting Association — naming more than 3,200 construction workers, overwhelmingly trade unionists. The information, built up over decades, was secretly shared among 44 of the largest construction employers in the UK and used to deny employment to those named on the list. 




In brief, the Blacklists 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 services to an individual for a reason related to a “prohibited list” (regulation 6).




A prohibited list is one that contains details of individuals who have been or are trade union members, or who have taken or are taking part in union activities. It can 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 union membership or activities (regulation 3(2), Blacklists Regulations). 




In Maunders v Proteus Services Limited, ET/1810036/2010, unreported, 14 May 2013, an employment tribunal suggested (contrary to BIS (now BEIS) guidance) that a blacklist can be unlawful even if the workers took part in unofficial action (see page 171). In the same case, the tribunal concluded that a “security watch list” kept by Lindsey Oil Refinery on its database was not a prohibited list because it was compiled to prevent access to the site by individuals viewed as a security threat, and not to discriminate for a union-related reason. Since it was not a “blacklist”, there was no breach of the regulations.




In Miller v Interserve [2012] UKEAT 0244/12/0512, the EAT suggested that a blacklist need not be written down, and that a purely mental list, in the mind of the employer, could be a prohibited list. 



The Blacklists Regulations have a number of significant flaws. A major weakness is the lack of effective protection for agency workers. Another is the very short time limit for bringing claims. Many claims have been lost because they were filed with the tribunal too late. Tribunals have taken an extremely restrictive attitude to time limits in these claims. Anyone who discovers that their name is on a blacklist and wants to take action should immediately contact their union. Any delay is likely to result in their claim being rejected as being out of time. 




TULRCA: TULRCA provides rights not to be refused employment on grounds relating to union membership (section 137), not to suffer detriment on grounds relating to union membership or activities (section 146), not to be dismissed on trade union grounds (section 152) and not to be selected for redundancy on trade union grounds (section 153).



Data protection laws: Information about union membership is one of the “special categories of data” (previously called sensitive personal data) protected by the General Data Protection Regulation (GDPR). Blacklisting infringes these laws. Penalties have been very significantly increased by the GDPR. There is also a new “right to be forgotten”. For more information, see Chapter 15.


The European Convention on Human Rights: Blacklisting infringes Articles 8 (privacy), 10 (free speech) and 11 (freedom of association). See Chapter 1, page 22.


The Charter of Fundamental Rights of the European Union: Blacklisting infringes the right to freedoms of assembly and association, including the right to form and join trade unions. 


International Labour Organisation (ILO) Conventions: Blacklisting is unlawful under ILO Convention No.98 which protects against acts of anti-union discrimination (see page 130).



International covenant on European, social and political rights of the United Nations: The UK ratified this covenant in 1976. Again, it protects everyone’s right to belong to a trade union of their choice. 


Public procurement laws: The EU Public Procurement Directive requires member states to take “appropriate measures” to ensure that new service providers comply with EU environmental, social and labour law obligations, national laws and collective agreements, when providing public services (Article 18(2)). In response, the Scottish Government has enacted the Public Contracts (Scotland) Regulations 2015. In particular, these regulations require Scottish commissioning bodies to bar from tendering any organisation found by a tribunal to have committed blacklisting, or that has admitted blacklisting. The English equivalent regulations, the Public Contracts Regulations 2015, do not mention blacklisting. The Welsh government has issued formal advice to all Welsh public bodies to use public procurement to help eliminate blacklisting.



Defamation, conspiracy and breach of privacy: Blacklisting is likely to be defamatory and may also amount to a conspiracy to cause loss by unlawful means. It also breaches common law privacy rights.



In May 2016, union-backed group litigation by blacklisted workers resulted in pay-outs ranging between £25,000 to £200,000, depending on factors such as income loss and the seriousness of the defamation. In December 2017, general union Unite launched new proceedings for more than 70 blacklisted construction workers, against four ex-chairmen of the Consulting Association and 13 companies, alleging unlawful conspiracy, breach of privacy, defamation and data protection offences. 


In March 2018, the Metropolitan Police finally confirmed, as long suspected by unions and campaigners, that police officers unlawfully passed information about blacklisted workers to construction companies involved in blacklisting.


These allegations will be considered in the long-delayed public inquiry into under-cover policing. “Core participant” status in the inquiry has been granted to several blacklisted activists, the Blacklist Support Group, the NUM, the FBU and UCATT (now merged with Unite).


The official confirmation of police involvement has strengthened the call for a public inquiry into blacklisting and for a change to the law making blacklisting a criminal offence for which individuals are held accountable. The Labour Party has made a manifesto commitment to conduct a public inquiry and to guarantee unions a right of access to workplaces to speak to members and potential members. 


Far from things getting better, measures in the Trade Union Act 2016 (TUA 16), including new powers for the Certification Officer to demand confidential information about union membership and activities (see page 161), and for “picket supervisors” to give contact details to the police (see Chapter 6), raise fresh concerns about the risk of future blacklisting.