Anti-union blacklisting 





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


The Blacklisting Regulations: Anti-union blacklists are outlawed under the Employment Relations Act 1999 (Blacklists) Regulations 2010 (the Blacklisting Regulations). These regulations ban the compiling, supply, sale or use of lists of union activists and members, for the purpose of discriminating against them. They were enacted following the discovery by the Information Commissioner in 2009 of a secret blacklist maintained by a clandestine organisation called the Consulting Association, naming over 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. 





In brief, the Blacklisting 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 someone for a reason related to a “prohibited list” (regulation 6).





A prohibited list is one containing details of individuals who have been or are 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), Blacklisting Regulations). 





In Maunders v Proteus Services Limited, ET/1810036/2010, unreported 14 May 2013, a tribunal suggested (contrary to BIS (now BEIS) guidance) that a blacklist can be unlawful even if the workers participated in unofficial action (see page 181). However, the same 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 — 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. A purely mental list, in the mind of the employer, could be a prohibited list. 



The Blacklisting Regulations have several 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 dismissed because they were submitted too late. Tribunals have taken a very restrictive approach to time limits in these claims. Anyone who discovers their name 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. In general, unions have opted to pursue civil court claims for breach of privacy and data protection, in preference to tribunal claims under the Blacklisting Regulations. 





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). See above.




Data protection laws: Information about union membership is “special category data” (previously called sensitive personal data) protected by the General Data Protection Regulation (GDPR) and the Data Protection Act 2018. Blacklisting infringes these laws. Penalties were 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 21.



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. As Law at Work goes to press, the future of the Charter is unclear. The EU Withdrawal Act 2018 states that this Charter is to cease to apply once the UK has left the EU.


International Labour Organisation (ILO) Conventions: Blacklisting is unlawful under ILO Convention No.98 which protects against acts of anti-union discrimination (see page 22).




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


Public procurement laws: EU law (the Public Procurement Directive (PPD)) requires all 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), PPD). To implement the PPD, the Scottish Government enacted the Public Contracts (Scotland) Regulations 2015 under which Scottish commissioning bodies must bar from tendering any organisation found by a court or 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 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 fresh 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. 


Several blacklisted activists, the Blacklist Support Group, the NUM, the FBU and UCATT (now merged with Unite) have “core participant” status in the long-running public inquiry into under-cover policing, chaired by Sir John Mitting. In March 2019, fresh evidence to the inquiry — an internal police investigation into blacklisting — confirmed long-held suspicions that police officers unlawfully shared information about blacklisted workers with construction companies.
Official confirmation of police involvement has strengthened the call for a public inquiry into blacklisting and for blacklisting to be made a criminal offence. The Labour Party has made a manifesto commitment to hold 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 171) and new requirements for “picket supervisors” to give contact details to the police (see Chapter 6), have raised fresh concerns about blacklisting. 


The Blacklist Support Group warns that blacklisting continues. As recently as February 2019, industrial action was threatened at the Crossrail project following the dismissal of a union safety activist blacklisted by The Consulting Association who won compensation in the high court proceedings. 


The Blacklist Support Group blog and contact details can be found at: www.hazards.org/blacklistblog.