Anti-union blacklisting 



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.