Strengthening the Blacklisting Regulations: An Institute of Employment Rights Briefing

23 January 2013

The following briefing was produced for Labour MPs prior to the debate in Parliament on blacklisting on the afternoon of 23 January 2013

by Carolyn Jones

It is shameful that so little has been done to acknowledge the scandal of blacklisting and scandalous that even less has been done to compensate those who have suffered from this vile practice.

We welcome the exposure given to this issue by the Scottish Parliament and congratulate our SMP colleagues for their determination in bringing this issue up the political agenda.

And on the day Europe is so much in the news, we recognise the work being undertaken at the EU level and congratulate our colleagues Stephen Hughes MEP and Glenis Willmott MEP for taking up the issue in the European Parliament.

The construction companies identified as participating in the blacklisting operation include household names based and operating across Europe including: Skanska (Sweden), Bam (Netherlands), Vinci (France), Laing O’Rourke (Ireland), Sir Robert McAlpine, Balfour Beatty, Kier, Costain, Carillion (UK) to name but a few. It is important therefore that European wide action is taken in response.

With that in mind, we congratulate the Blacklist Support Group and Professor Keith Ewing of the Institute of Employment Rights* for bringing this to the attention of the EU Commissioner in 2011 and await the conclusions of the enquiry undertaken by László Andor, European Union Commissioner with responsibility for Employment, Social Affairs and Inclusion, to discuss potential EU wide legislation to outlaw blacklisting.

In the light of recent evidence and based on the information gathered in Scotland, EU and now at Westminister, we believe the current Regulations now need to be strengthened in the following ways:

There should be a positive right not to be blacklisted and workers who find themselves on a blacklist should have an automatic right to compensation without the burden of proof being placed upon them.

Under the current Regulations, the burden of proof is on the complainant to show that he or she has been blacklisted and to establish loss as a result. The government has no role in conducting investigations into improper blacklisting; and trade unions are denied an enhanced role in the process by giving them the right to take legal actions on behalf of members, who must reveal their trade union activities to all and sundry. In other words, blacklisted workers are expected to be pleased that there is a right to recover compensation if they can prove that they have suffered loss as a result of having been blacklisted. If this continues, we risk being judged to have failed in our duty to protect and promote fundamental rights and freedoms of construction workers. That situation needs to be corrected and corrected quickly.

We know already that a number of blacklisted workers – undeterred by their failure to win adequate redress in the UK – are taking their complaints to the European Court of Human Rights complaining that there has been a breach of their Convention rights (article 8 (privacy) along with article 11 (freedom of association). This will no doubt open an even bigger can of worms including: why was the government department responsible for promoting the interests of business given access to the unredacted files of blacklisted workers, without the consent of the workers in question? What – if any – are the links between those who operate blacklists on behalf of construction companies and the State? Does (or has) Special Branch and/or the security and intelligence services receive information from private sector blacklisters, and do these agencies provide information to private sector blacklisters? Is intelligence work of this kind out-sourced to the private sector, and if so does this amount to covert or directed surveillance under the Regulation of Investigatory Powers Act (the snoopers’ charter)?

All these issues are now out in the open and threaten to expose the UK to further ridicule unless immediate action is taken to enquire into, expose findings and correct the fault lines in this murky business.

A retroactive compensation scheme should be established to compensate blacklisted workers. In the 1980s the Tories introduced a retroactive compensation scheme for people sacked for non-membership of a union where a closed shop had operated. If a Tory government could compensate those sacked for not being union members, what objection can they now have to a similar scheme for those sacked because they were trade unionists?

A scheme of this kind would provide a guaranteed minimum amount of compensation for people who appeared on Kerr’s database, with the compensation to be increased for those who had suffered loss as a result. And if the Government’s retort is we cannot afford it, then the compensation scheme should be paid for by the construction companies who have now admitted to trafficking in human misery and violating human rights.

Protection against blacklisting should be extended to include “trade union related activities”. Under current regulations, protection applies only to ‘trade union activities’. This leaves it to the Courts to decide whether unofficial action is in or outside ‘trade union activities’. Given the narrow definition in the current legislation much ‘normal’ trade union activity will fall on the wrong side of the line. For instance, when workers take part in what they believe to be lawful industrial action only to find out later that the action has been deemed unlawful following an injunction, we believe that should be treated as trade union related activity and protected. Or if there is trouble at the gates of a site about whether a site should be open or closed following health and safety concerns, we believe that action should be deemed as related to trade union activity and thereby engage the protection. Moreover, current and increasing restrictions on access to justice mean fewer blacklisted workers will have the financial ability to pursue such uncertain cases.

Blacklisting should be a criminal offence and companies who make use of blacklists should be open to criminal prosecution. Under the existing Regulations Blacklisting is neither criminal nor unlawful, which is why the only action taken against Kerr was in relation to breaches of the Data Protection Act. As we have now seen during the building of the Olympic venues, that Regulation is not strong enough, provides no deterrent and in its current form will not stop blacklisting.

The government’s recently announced Advisory Council for the Construction Industry should be a tripartite body. Last week the government announced the first of a number of advisory councils covering “key sectors” of the economy. The aim of the Councils, according to the Government, is to give business “the confidence they need to invest, hire staff and grow”. This debate today has highlighted how, left to their own devises, too many of our large companies, engage in dubious practices that leave hard working people outside the gates. We believe invitations should be extending to unions representing those people who work in the industry to ensure all sides of the sector feed into proposals on the future of the industry.

* Professor Keith Ewing from Kings College London (a leading academic in international law and human rights issues and the author of a UCATT Commissioned, IER report Ruined Lives. Blacklisting in the UK Construction Industry).