Blacklisting blacklists

Was the Government “paying homage to an item of Labour history, or even Labour demonology, rather than to something that could happen now”? That question was posed by a member of the opposition when s 3 of the Employment Relations Act 1999 (“ERA 1999”) was being debated in committee. It has taken 10 years, but discovery of the Consulting Association’s activities confirms the answer as a resounding “no”, and proposals for regulations to enable the blacklists section have been revived.

In 2003 the “Prohibition of Blacklists Regulations” went out to consultation, following which it was decided that the regulations would not be introduced until there was evidence that blacklisting was occurring or may occur.

News broke earlier this year that an investigation by the Information Commissioner’s Office (ICO) had brought a blacklist to light. For 15 years or more the Consulting Association had held records about more than 3,000 construction workers. While half contained little data other than individuals’ names, the other half held information as detailed as individuals’ personal relationships. Reference was made to activities associated with trade unions in 75% of the latter cases, including acting as representative, involvement in industrial action, and making health & safety complaints. The information was used by over 40 construction companies to vet individuals for employment.

Mixed parentage

Adapted from the 2003 proposals, a draft SI has been put out to a shortened six-week consultation and it is expected that, come the autumn, s 3 of ERA 1999 will no longer be dormant. However, the Employment Relations Act 1999 (Blacklists) Regulations 2009 as drafted are likely to attract criticism from trade union quarters.

No provision is made for proceedings by unions on behalf of members (ERA 1999, s 3(3)(d)), nor is there the creation of a criminal offence as countenanced by s 3(3)(f). While discrimination legislation provides the foundation for certain aspects of the regulations, for example burden of proof (regs 5(3) and 6(3)) and an injury to feelings award as a potential remedy (reg 8(3)), other aspects draw more closely from unfair dismissal legislation.

For example, total compensation is not to exceed the limit (currently £66,200) imposed by s 124(1) of the Employment Rights Act 1996 (reg 8(4)). Trade unions are likely to press for a punitive statutory minimum amount of compensation. The three-month time limit for lodging a claim is only capable of extension where it has not been reasonably practicable for a complaint to be presented in time. Again, there is likely to be pressure to change this to the “just and equitable” formulation used for discrimination complaints. However reg 7(2) states that, in considering when it was reasonably practicable for a complaint to be presented, the tribunal shall, in particular, have regard to when the facts to which the complaint relates came to the attention of the complainant. No provision to this effect appeared in the 2003 draft regulations.

Past cases

Notably, the Government states explicitly in the consultation document that it has no intention of applying the regulations retrospectively. Its position is that this does not close off all access to justice to individuals who suffered loss from blacklisting in earlier periods. There is likely to be increased focus on whether redress is possible using ss 137, 146 and 152 of the Trade Union and Labour Relations (Consolidation) Act 1992, which make it unlawful for an employer to refuse employment, cause someone to lose out on work, or dismiss someone on grounds related to trade union membership or activities.

The consultation document also notes that individuals can claim compensation under the Data Protection Act 1998. If an individual can show that they have suffered damage as a result of a breach of this Act, they can sue for compensation to cover loss of earnings, damage to reputation, and even any distress suffered.

Because the Consulting Association’s records were compiled illegally, they were due to be destroyed in their entirety over the course of the summer. However, following pressure by unions such as UCATT, the ICO has announced that they will now be retained until 31 March 2010 when their future will again be reviewed. This increases the window of opportunity to access their files and seek advice as to redress against the company (or companies) responsible for using the blacklist when making employment decisions.

The consultation document requests any other evidence consultees may hold of trade union blacklisting, and it remains to be seen whether the revelations stop at the activities of the Consulting Association and, before it, the Economic League in the 80s and 90s. As we wait to discover whether the Government can strike the right legislative balance of permitting employers and others to vet potential recruits on legitimate grounds, such as security and competence, while stamping out the pernicious practice of blacklisting, there are litigious times ahead regardless.