Blacklisting


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 The Consulting Association (TCA). 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, unions say the regulations are far too weak. Offences under the regulations are civil rather than criminal and rely on workers taking a case to an employment tribunal where the remedy is financial compensation. By its very nature, blacklisting is secretive and difficult to prove and many cases have not made it as far as the tribunal due to strict time limits in bringing forward a case. In addition, the regulations have failed to protect agency workers who are not directly-employed. Agency workers are particularly common in the construction sector.


The time limit for this kind of claim is also very restrictive. 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. The regulations have not been an effective way of punishing blacklisting.


The Blacklist Support Group says that blacklisting should be a criminal offence, in the same way that breaches of health and safety laws at work are criminal, subject to criminal sanctions including prison sentences and enforced by the police or ICO who have the authority to seize documents.


In Scotland, from 18 April 2016 it has been a legal requirement for public bodies to exclude businesses which are found to have breached the Blacklist Regulations 2010, or which have admitted to doing so. The ban will remain in force until the business has taken appropriate remedial measures, or a period of three years has elapsed since the blacklisting occurred, which is the maximum timescale allowed under European Union (EU) law. The legal requirement to exclude such companies replaces previous guidelines for public bodies which required companies seeking public sector contracts to disclose whether they have been involved in the practice.