Anti-blacklisting regulations

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 that was being maintained by a business known as The Consulting Association. 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.

Under the Blacklist Regulations, 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, 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 for it. In July 2009, the manager of the Consulting Association, Ian Kerr, was fined just £5,000 with £1,187 costs for breaches of the Data Protection Act 1998. None of the companies that accessed the blacklist (whose names are now listed on the ICO website) or any of their directors suffered any penalty.

The Institute of Employment Rights (IER) has called for the anti-blacklisting regulations to be strengthened and in particular for:

• a positive right not to be blacklisted;

• an automatic right to compensation for workers who find themselves on a blacklist without the need to establish loss;

• a retrospective compensation scheme to compensate blacklisted workers; and

• blacklisting to be a criminal offence.

General union Unite rep John Kelly, who was blacklisted by his employer Interserve Industrial Services because of his union activities while working at a power station at Runcorn in Cheshire, recently won his employment tribunal case for unfair dismissal. He was awarded around £3,250 for unfair dismissal plus damages for injured feelings of £1,250. The tribunal said that Trevor Collins, a construction manager on the Capenhurst nuclear project, did not want Kelly working for him because of his activities as a Unite member.

However, there have generally been very few successful claims for blacklisting. 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.

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.

In January 2014, Dave Smith lost his appeal against the employment tribunal ruling that said that he could not bring a claim of blacklisting against his employers, Carillion, because he was not employed by them. The EAT upheld the original decision saying that Mr Smith did not have legal protection against blacklisting as he was an agency worker, although the appeal judge acknowledged that he had “suffered an injustice from blacklisting” (Smith v (1) Carillion (JM) Ltd and (2) Schal International Management Ltd [2014] UKEAT 0081/13/1701). The High Court upheld the decision and in March 2015, Smith lost his appeal against the ruling in the Court of Appeal. It ruled that although he had been blacklisted, he was not protected by the Human Rights Act as this had come into force after the blacklisting occurred. He will now take his case to the European Court of Justice.