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Anti-union blacklists
[ch 5: pages 125-127]Anti-union blacklists are outlawed by the Employment Relations Act 1999 (Blacklists) Regulations 2010. The regulations ban the compiling, supplying, selling or using of lists of trade union activists and members, with the purpose of discriminating against them.
Broadly speaking, the 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)).
In Maunders v Proteus Services Limited, ET/1810036/2010, 14 May 2013, unreported, a tribunal ruled that a “security watch list” kept by the Lindsey Oil Refinery on its database was not a prohibited list. This was because it was compiled in order to prevent access to the site by individuals regarded as a security threat, and not to discriminate against workers for a union-related reason. Since it was not a “blacklist”, there was no breach of the regulations.
In the same case, the tribunal suggested that contrary to BIS guidance, a blacklist can be unlawful even if those on the list took part in unofficial, rather than official industrial action.
In Miller v Interserve [2012] UKEAT 0244/12/0512, the EAT suggested that a purely mental list, in the mind of the employer, could be a prohibited list.
The anti-blacklisting regulations have a number of significant weaknesses. In particular:
• the regulations fail to give adequate protection to agency workers; and
• many claims have been dismissed because they were filed with the tribunal too late. Tribunals take a very restrictive attitude to time limits. Anyone who discovers that their name is on a blacklist and wants to take action should immediately contact their union. Any delay in bringing the claim is likely to result in it being rejected as being out of time.
The anti-blacklisting campaign — key victories
After years of campaigning blacklisting is finally on the political and legal agenda. There have been a number of key developments. In particular:
• in April 2011, the Scottish Affairs Select Committee launched its investigation into blacklisting. Two interim reports have been published;
• in 2013, trade unions negotiated a change to the Construction Industry Joint Union-Employer Working Rule Agreement regulating the contracts of around 500,000 construction workers. Following a proposal by construction union UCATT, a new anti-blacklisting term states: “The CIJC does not condone any form of blacklisting of any worker”;
• in September 2013, Unite secured the reinstatement of Crossrail electrician and union activist Frank Morris, who lost his position after raising health and safety concerns;
• the Independent Police Complaints Commission conceded evidence of probable police collaboration with blacklisters. This evidence is examined in a new book, Blacklisted, published in December 2014, by blacklisted engineers Dave Smith and Phil Chamberlain;
• the Information Commissioner agreed to contact directly 1,200 workers who were unaware that their names appear on a blacklist;
• in October 2013, eight major blacklisters put forward a compensation scheme, apologising for their involvement with the illegal blacklisting organisation, The Consulting Association, but they refused to admit liability. Unions condemned the scheme as “counterfeit”, restrictive and mean. The scheme was not agreed with unions, and UCATT has advised its members to have nothing to do with it.
• Unite set up a blacklisting hotline (tel: 0800 587 7539) for members to make contact and is pressing for a scheme agreed by unions, to include a job, as well as upskilling if needed;
• in November 2013, Unite and UCATT issued high court class actions against blacklisting employers, to coincide with a TUC National Day of Action on Blacklisting, while the GMB launched a high court claim against Carillion for compensation for 70 members. Only a fraction of affected workers have been traced and unions have renewed a call for affected members to come forward to join the joint action for compensation;
• UCATT is supporting a claim to the European Court of Human Rights arguing that blacklisting is a breach of Articles 11 (freedom of association) and 14 (protection from discrimination);
• since November 2013, the Scottish government requires all bidders for public contracts to disclose whether they have been involved in blacklisting and if so what “remedial action” has been taken. In future, companies doing business in Scotland found to have blacklisted could have their contracts terminated;
• in December 2013, Unite and the GMB signed a labour agreement with EDF Energy containing “cast iron protections” against blacklisting at the proposed nuclear power station at Hinkley Point C in Somerset;
• the Welsh government has issued a Procurement Advice Note calling on all Welsh public bodies to use procurement to help eliminate blacklisting;
• in March 2014, the European Parliament voted to amend the European Data Protection directive to make blacklisting on grounds of trade union membership or activities unlawful across Europe. Other measures approved include a proposed new “right to erasure”.
Anyone who thinks they may be on a blacklist can contact the campaign group Blacklist Support Group for advice and support. Their blog and contact details can be found at: www.hazards.org/blacklistblog.