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Anti-union blacklisting
[ch 5: pages 152-155]Anti-union blacklists are outlawed under the Employment Relations Act 1999 (Blacklists) Regulations 2010 (the Blacklist Regulations). The regulations ban the compiling, supplying, selling or using of lists of trade union activists and members, with 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 secretive business known as 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.
The Blacklist Regulations in brief:
• 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 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 (unreported, 14 May 2013), an employment tribunal suggested, contrary to BIS guidance, that a blacklist can be unlawful even if the workers named took part in unofficial action. However, in the same case, the tribunal also 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 the blacklist need not be written down, and 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 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.
Key stages of the anti-blacklisting campaign
After years of campaigning by anti-blacklist campaigners the Blacklist Support Group, supported by unions, including the GMB, Unite and UCATT, blacklisting is finally firmly 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 a detailed investigation into blacklisting, which they completed before the 2015 election. The review exposed key evidence, including damning testimony from Consulting Association manager, Ian Kerr, and evidence from the Independent Police Complaints Commission suggesting that information was shared with blacklisters by at least one police officer. Evidence heard by the committee was later used in civil court claims;
• the Select Committee activities also led to important changes to Scottish law. Since November 2013, all bidders for public contracts in Scotland must disclose any involvement in blacklisting and what “remedial action” they have taken. From 18 April 2016, Scottish public procurement commissioning bodies must exclude from the tender process any organisation found by a tribunal to have committed blacklisting, or that has admitted blacklisting (regulation 58(3)(b). Public Contracts (Scotland) Regulations 2015);
• in 2013, the Welsh government also issued formal advice to all Welsh public bodies to use procurement to help eliminate blacklisting;
• the European Commission is revising the Data Protection Directive to ban the blacklisting of trade unionists in all member states, and is creating a right of “erasure” online (the so-called “right to be forgotten”);
• in September 2013, organised action supported by Unite secured the reinstatement of agency worker Frank Morris, a Crossrail electrician and Unite activist who lost his position on the site after raising health and safety concerns;
• also 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 to state expressly that “the CIJC does not condone any form of blacklisting of any worker”;
• in October 2013, eight major blacklisters proposed a compensation scheme for those named on the blacklist but they refused to admit liability. Unions condemned the scheme as “counterfeit”, restrictive and mean, with small compensation sums, from as little as £1,000. The scheme was not agreed with unions, who advised members to steer clear of it;
• in November 2013, the ICO promised to contact 1,200 blacklisted construction workers who had not come forward;
• Group high court litigation by blacklisted workers, backed by trade unions UCATT, Unite and the GMB, ended in May 2016 with substantial awards of compensation. Total compensation, according to the GMB, is estimated at £75million, with legal costs on both sides estimated at £25 million. Payouts ranged between £25,000 to £200,000, depending on factors such as income loss and the seriousness of the defamation. As well as compensation, admissions of guilt and formal apologies, the companies have agreed to issue guidance to managers to prevent blacklisting at a local level and to ensure that union members are not treated less favourably in job applications as a result of the litigation;
• blacklisting is also being challenged in the European Court of Human Rights (ECHR). Two claims are listed. Brough v The United Kingdom is a test case for workers blacklisted in the 1980s, based on Article 11. The second claim, Smith v the United Kingdom, argues that the failure to provide a remedy for blacklisting of agency workers breached Articles 11 and 8;
• in 2015, a three-year public inquiry, the Pitchford Inquiry, was announced into undercover police operations, including those targeting political and social justice campaigners. Three trade unions will be giving evidence to the inquiry, including evidence from construction union UCATT of an undercover police officer who attended union meetings, stood on picket lines and even wrote minutes;
• unions continue to call for a nationwide public inquiry to protect future workers against blacklisting, for jobs and reskilling for blacklisted workers and stronger laws to prevent these activities in the future;
• far from things getting better, measures in the Trade Union Act 2016, including new powers for the Certification Officer to demand confidential information about union membership and activities, and a new requirement for “picket supervisors” to give their contact details to the police, raises fresh concerns about blacklisting in the future.
The Blacklist Support Group blog and contact details can be found at: www.hazards.org/blacklistblog.