Anti-union blacklisting
[ch 5: pages 170-173]These are the main laws against anti-trade union blacklisting:
The Blacklists Regulations: Anti-union blacklists are outlawed under the Employment Relations Act 1999 (Blacklists) Regulations 2010 (the Blacklists Regulations). These regulations ban the compiling, supplying, selling or using of lists of trade union activists and members, for the purpose of discriminating against them. They were enacted after the discovery by the Information Commissioner in 2009 of a secret blacklist maintained by a clandestine organisation – 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.
In brief, the Blacklists 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 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 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)).
In Maunders v Proteus Services Limited, ET/1810036/2010 (unreported, 14 May 2013), an employment tribunal suggested, contrary to BIS (now BEIS) guidance, that a blacklist can be unlawful even if the named workers took part in unofficial action (see page 189). However, in the same case, the 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, 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 a blacklist need not be written down, and that a purely mental list, in the mind of the employer, could be a prohibited list.
The Blacklists 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.
TULRCA: See above, page 166. 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).
Data Protection laws: Information about union membership is sensitive personal data and blacklisting will infringe these laws. For more information about data protection laws, see Chapter 4.
The European Convention on Human Rights: Blacklisting infringes Articles 8 (privacy), 10 (free speech), 11 (freedom of association) and 14 (freedom from discrimination). See Chapter 1, page 21).
Defamation and conspiracy: Blacklisting is likely to be defamatory and may also amount to a conspiracy to cause loss by unlawful means.
International Labour Organisation (ILO) Conventions: Blacklisting in unlawful under ILO Convention No.98 which protects against acts of anti-union discrimination (see page 22).
Public procurement laws: Since April 2016, EU Public Procurement Directive 2014/14/24/EU requires member states to take “appropriate measures” to ensure that new service providers comply with EU environmental, social and labour law obligations, as well as national laws and collective agreements, when providing public services (Article 18(2)). In Scotland, the Scottish Government enacted this requirement into new regulations (the Public Contracts (Scotland) Regulations 2015). The regulations require Scottish public commissioning bodies to exclude from the tender process any organisation found by a tribunal to have committed blacklisting, or that has admitted blacklisting. The English equivalent regulations – the Public Contracts Regulations 2015 – contain no similar requirements for procurement by public bodies in England . The Welsh government has issued formal advice to all Welsh public bodies to use procurement to help eliminate blacklisting.
Key stages of the anti-blacklisting campaign
Years of campaigning by anti-blacklist campaigners the Blacklist Support Group, supported by unions, including the GMB, Unite and UCATT have resulted in significant judicial rulings and political achievements. Here are the main milestones of the campaign to date:
• in April 2011, the Scottish Affairs Select Committee launched a detailed investigation into blacklisting, 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 some police involvement.
• the European Commission has revised its Data Protection Directive to include a new “right to be forgotten” (Article 16 – right of online erasure. The Directive must be in force in the UK by May 2018 (see Chapter 4);
• in September 2013, organised action supported by Unite secured the reinstatement of agency worker Frank Morris, a Crossrail electrician and Unite activist, blacklisted after raising health and safety concerns;
• also in 2013, trade unions negotiated a change to the Construction Industry Joint Union-Employer Working Rule Agreement to state expressly that “the CIJC does not condone any form of blacklisting of any worker”;
• successful union-backed group litigation by blacklisted workers ended in May 2016 with pay-outs ranging between £25,000 to £200,000, depending on factors such as income loss and the seriousness of the defamation;
• In April 2016, new anti-blacklisting public procurement regulations came into force in Scotland (see below: Procurement). Despite the change to the law, campaigners say that several large contractors implicated in the blacklisting scandal continue their involvement in public contracting;
• blacklisting is being challenged in the ECHR in Smith v United Kingdom, a case about the lack of remedy for an agency worker blacklisted by an end user;
• The Pitchford Inquiry into undercover police operations was launched in 2015. Its terms of reference include the targeting of political and social justice campaigners. “Core participant” status has been granted to several blacklisted activists, the Blacklist Support Group, the NUM, the FBU and UCATT (recently merged with Unite). Technical arguments have plagued the inquiry, which is unlikely to hear evidence before 2018. UCATT has evidence that an undercover police officer attended union meetings, stood on picket lines and even wrote minutes;
• unions and the Labour Party continue to call for a nationwide public inquiry into blacklisting, for jobs and reskilling for blacklisted workers and stronger rights, including criminalisation. The government's position on the call for a public inquiry is that the events took place too long ago;
• far from things getting better, measures in the TUA 16, including new powers for the Certification Officer to demand confidential information about union membership and activities (see page 178), and for “picket supervisors” to give contact details to the police (see Chapter 6), raise fresh concerns about the future.
The Blacklist Support Group blog and contact details can be found at: www.hazards.org/blacklistblog.