Legislation prohibiting blacklists may not have achieved its purpose

Posted by Mike Wilson on
In 2009 the Information Commissioner's Office (ICO) uncovered a secret blacklist within the construction industry of active union members, shops stewards, health and safety representatives and other workers containing details of their activities, employment history and even personal relationships.

This information had been sold to construction companies by The Consulting Association, and its founder, Ian Kerr, was subsequently prosecuted by the ICO and fined the then maximum penalty of £5,000. As a result of this, the Employment Relations Act 1999 (Blacklists) Regulations 2010 (the Regulations) were enacted. In addition, the maximum penalty the ICO can impose for data protection breaches was increased to £500,000.

The Regulations prohibit the compilation, distribution and use of lists by employers and employment agencies for the purposes of discrimination against trade union members and trade union activities. An individual has the right to complain to an Employment Tribunal (ET) if they are refused employment or employment agency services, or they are dismissed or subjected to detriment, for a reason that relates to a prohibited list. If they are successful they can be awarded compensation.

So far there have been very few examples of cases where the Regulations have been applied. One such case is a recent non-binding ET decision which demonstrates that the Regulations may have shortcomings.

The ET reluctantly ruled in the case of Maunders v Proteus Well Services Ltd and others that an oil refinery's list of workers not allowed on site was not a prohibited list under the Regulations even though one worker alleged he was included on the list because of his trade union activities several years before. Under the Regulations, a prohibited list has to be compiled to discriminate against the employer's (or employment agency's) own workers. Here the individual was not a worker of the oil refinery but of a contractor. In the absence of collusion between the refinery and the contractor, neither the refinery nor the contractor was in breach of the Regulations.

The ET also disagreed with BIS guidance which, in citing examples of "union activities", draws a distinction between official and unofficial industrial action. In the ET's view a list compiled to discriminate solely against trade union members who took part in unofficial industrial action should still be regarded as a prohibited list.

The case is only a first instance decision and is therefore not binding on other ETs. However it shows that there is a potential loophole because the Regulations do not cover lists held by one organisation with the aim of discriminating against trade unionists employed by others (e.g. contractors). The reluctance of the ET in reaching its decision illustrates this is still an area of controversy, particularly in the construction industry.

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Mike specialises in all aspects of employment law, including restrictive covenants, commercial agents regulations and disqualification of directors.

Mike Wilson
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