Labour Research March 2012


Struggle for justice is far from over

On the second anniversary of legislation intended to control blacklisting, Labour Research finds that the law is failing to deliver proper redress to those whose lives have been devastated by the practice — which, campaigners say, continues.

Electrician Alan Keyes had not been able to get work in the London construction industry since working on London Underground’s Jubilee Line extension in 2000. In 2009 he found out why — an 18-page file kept by the infamous blacklisting service The Consulting Association (TCA).

Entries on his file included “do not employ”; “militant” and “strikes at the drop of a hat”.

TCA’s blacklist of more than 3,200 construction workers — overwhelmingly trade unionists — was uncovered following a raid by the Information Commissioner’s Office (ICO) in February 2009.

Compiled over decades, information on the blacklist was secretly shared among 44 of the UK’s largest construction employers and used to deny employment to building workers on the list.

The companies who accessed the list included major construction names such as Balfour Beatty, several Amec companies, Amey, Costain, Sir Robert McAlpine, Skanska and Taylor Woodrow.

Thanks to the practice, Keyes (not his real name) and many other activists like him have experienced the enormous impact of blacklisting on their careers, finances and family lives, finding it impossible over the years to hold down any regular employment in the construction industry, and suffering many thousands of pounds in lost earnings.

This month marks the second anniversary of the Employment Relations Act 1999 (Blacklists) Regulations 2010 intended to control blacklisting and enacted by the previous Labour government. So has the legislation brought Keyes and others redress?

Unfortunately, the law has not delivered justice for blacklisted workers. Not only that, say unions, the law is also too weak to deter employers from continuing to use blacklists and to deny employment to trade union representatives who speak out on safety and other issues.

The regulations prohibit “the compilation, use, sale or supply of blacklists containing details of trade union members and activists whose purpose is to discriminate against workers on grounds of trade union membership or trade union activities”.

They added to a number of existing legal provisions aimed at providing protection for trade union members and representatives from this type of discrimination.

Blacklisting: what legal provisions are there?

Legal provisions in the area of blacklisting are:

• the Trade Union and Labour Relations (Consolidation) Act 1992 which provides rights not to be refused employment on grounds relating to union membership (section 137), detriment on grounds relating to union membership or activities (section 146), dismissal on trade union grounds (section 152) and selection for redundancy on trade union grounds (section 153);

• the Data Protection Act 1988 can be used against the compiler or holder of a blacklist and anyone using data from it.

So Ian Kerr, manager of blacklisting organisation The Consulting Association was convicted under several breaches of the Act. However, the Information Commissioner’s Office took no enforcement action against any of the companies actually using the blacklist; and

• the Employment Relations Act 1999 (Blacklists) Regulations 2010 provides rights if blacklisting results in refusal of employment, detriment, dismissal or redundancy.

But they do not contain a freestanding right to compensation for being blacklisted;

• In addition, the European Convention on Human Rights, Article 11, guarantees the right of individuals to join and form trade unions for the protection of their interests, and Article 8 provides that everyone has the right to respect for their private and family lives, their home and their correspondence.

Blacklisting continues

But despite the regulations, unions and campaigning body the Blacklist Support Group (BSG) believe that blacklisting has far from disappeared.

Indeed, they feel that the files kept by TCA merely represented a small part of a much bigger problem that is not confined to the construction industry. They strongly suspect, for example, that trade unionists in other industries, including the railways and the North Sea offshore oil industry, are also being blacklisted and refused work on the basis of information stored on secret files.

General secretary of the UCATT construction union Steve Murphy told Labour Research: “Blacklisting is a vicious, insidious practice and by its very nature is secretive. We have always said we don’t believe The Consulting Association blacklist is the only one in existence — just the only one that has been found so far.”

Campaigners point to the case of electrician Frank Morris. Last year, anti-blacklisting protestors demonstrated outside the Olympic media centre site following Morris’s dismissal. Morris says he was victimised after whistle-blowing on the operation of a secret blacklist on the Skanska/Carillion project, and that a co-worker was sacked after his name appeared on the list. His RMT union is backing his unfair dismissal claim.

Impact of blacklisting on construction workers

Blacklisted electrician Alan Keyes worked for a sub-contractor and was not directly employed by the company accessing the blacklist, making it unlikely that he would succeed in an employment tribunal claim for compensation.

“The same thing has happened to hundreds of trade union activists,” he told Labour Research.

Keyes says it is no coincidence that, with a whole layer of former shop stewards and safety reps blacklisted and refused work in the industry, and the current economic crisis, seven major construction companies had chosen this moment to pull out of the joint industry board (JIB) agreement and replace it with their own agreement, known as BESNA.

In early February, members of the Unite union at Balfour Beatty Engineering Services voted overwhelmingly — for a second time — to strike over the issue.

This appears to have had some impact as, in mid-February, Balfour Beatty withdrew the contracts in favour of talks with Unite.

The move would have meant cutting the hourly rate of pay for electricians by up to 35% — from £16.25 an hour to £10.50 an hour in some cases. Also proposed was removal of the right in the current JIB to challenge dismissal from day one.

Unite general secretary Len McCluskey said the union now expected the other firms “to see sense and follow Balfour Beatty’s lead by talking seriously”.

Fighting blacklisting is part of the wider campaign to defend pay and conditions in the industry which has seen months of unofficial walk-outs and protests by thousands of rank and file workers.

Ineffectiveness of the current laws

Meanwhile, there has only ever been one prosecution for blacklisting. In July 2009, the manager of TCA, Ian Kerr, was fined just £5,000 with £1,187 costs for technical breaches of the Data Protection Act 1988. But none of the companies that accessed the blacklist, nor any of their directors, have suffered any penalty.

And only three workers — Steve Acheson, Phil Willis and Paul Tattersfield, all members of the Unite union — have taken successful employment tribunal cases and won compensation after being blacklisted.

Even then, the highest payout was only just under £24,000. This was paid to Tattersfield who won his case after the tribunal found that Balfour Beatty Engineering Services Ltd had refused him employment because he was on TCA’s blacklist. So it appears that the law is not doing very much for blacklisted workers — even those who have “succeeded” in their tribunal cases.

Steve Cottingham, partner at trade union solicitors OH Parsons, told Labour Research there were a number of reasons why there have been so few successful tribunal cases.

Among these, he pointed out, time limits have been a major problem for most people, “with employers arguing that workers took too long to apply for their blacklist entries or waited too long from obtaining their blacklist entry before instructing a solicitor”. He added: “In other cases the companies accessing the blacklists have since gone out of business.”

Cottingham said that gathering evidence has proved difficult because the nature of recruitment on building sites in the 1970s and 1980s “meant that proper records were just not kept”.

OH Parsons says that employers, including the various Crown House and Laings construction companies, have raised complex defences that the company sued as their successor in title was not in fact the original company that had accessed the blacklist.

Indirectly employed workers not protected

Engineer Dave Smith’s recent employment tribunal case demonstrates the problem in relation to the law as it affects agency workers (and others not directly employed) — an employment situation which is very common in the building industry.

The former UCATT activist’s 36-page blacklist file stretched from 1992 to 2004. Nevertheless, despite clear evidence of blacklisting, in January this year Smith lost his tribunal claim for £175,000 compensation for lost earnings.

The tribunal found that he had been blacklisted by Carillion subsidiary companies because he raised concerns about asbestos on building sites and because of his trade union activities.

The companies admitted in a signed statement to the court that their managers had supplied information on his blacklist file.

But, while Smith’s barrister argued that the blacklist was a major breach of the 1998 Human Rights Act and the law should therefore be interpreted in such a way as to protect all “workers” including agency workers, Smith lost his case because he was employed through an employment agency.

In other words, he had no direct employment relationship with the company that had blacklisted him. However, Smith does not intend to let this prevent him from continuing to pursue his case, describing this legal setback as “just one battle in a long war against blacklisting”. He added that having lost his case at the employment tribunal, “we now intend to take the fight to the European Court of Human Rights”.

He explained that a win would mean “the government will be forced to change UK law on blacklisting to protect all workers, including agency workers and other non-directly employed workers, not just employees”.

Smith is also part of a group of around 100 workers who are about to try another legal avenue and take a class action based on the rarely-used common law tort of illegal conspiracy and breaches of the Data Protection Act. As Labour Research went to press, the case was due to be heard in the High Court.

Calls to strengthen UK and European laws against blacklisting

Meanwhile, there are growing calls by unions and employment lawyers for changes to both UK and European law to prevent blacklisting, as well as to properly compensate those workers who have been blacklisted.

For example, in UCATT’s 2009 report, Ruined lives — blacklisting in the UK construction industry, labour law expert Professor Keith Ewing set out a number of recommendations to strengthen the blacklisting regulations.

These included a recommendation that the regulations provide a basic award of compensation for the fact of being blacklisted, with an additional compensatory award for any losses suffered as a result of blacklisting.

And they should provide for the forfeiture of blacklists. The ICO should retain them and inform people that they are on the list and about the legal remedies available to them. Ewing also recommended that there be criminal sanctions for those who compile, maintain and access blacklists.

Moreover, he said, there should be a retroactive compensation scheme for people who have been blacklisted, similar to the scheme introduced by the Conservative government in 1982 for “closed shop” dismissals. (Unions have proposed that this should be paid for by the construction companies who made use of Kerr’s database.)

At European level, Labour MEPs are also trying to pursue action. Glenis Willmott and Stephen Hughes recently secured an amendment to the European Parliament resolution of 15 December 2011 on the mid-term review of the European strategy 2007-2012 on health and safety at work.

The resolution calls on the European Commission to propose a directive protecting individuals who raise legitimate health and safety concerns, and to put an end to the blacklisting of such workers by ensuring that “such a violation of a fundamental labour right is prevented by means of effective, proportionate and dissuasive sanctions”.

Following Smith’s case, in which David Clancy of the ­Information Commissioner’s Office told the tribunal there was information on TCA files that he believed could only have been supplied by the police or the security services, Labour MP John McDonnell called on the government to set up a public inquiry into blacklisting.

“I am calling upon the government to launch a public inquiry into the full extent and impact on people’s lives of blacklisting,” he said.

McDonell added: “These revelations are truly shocking and warrant a detailed and open, public investigation.”