Trades Union Congress supports action on blacklisting

In September 2012, at the annual conference of the UK’s Trades Union Congress, delegates unanimously supported calls for a day of action to raise awareness of the plight of victims of blacklisting in the construction industry. Thousands have been denied work because their details were held on a secret list, and many are still not aware their names are on the database. Unions want more done to help blacklisted workers, and have condemned successive governments for failing to act.

Blacklisting in construction

In 2009, the Information Commissioner’s Office (ICO) raided an office belonging to an organisation known as The Consulting Association (TCA).

Investigators found a database containing personal information about workers, mainly from the construction industry, as well as details of elected politicians, lawyers, academics and journalists who had assisted construction workers or published articles on the industry. The files held on workers were extensive, and included details of trade union activities, political views, health and safety roles, trade union membership, relationships and friendships, as well as other surveillance information.

A total of 3,213 workers were registered on a blacklist held by 44 construction firms. These workers were denied employment as a result of their left-wing views, trade union activities, or because they had a history of raising health and safety concerns at work.

TCA had been funded by large construction firms for more than 30 years. Firms checked the names of new recruits against those on the list. High profile organisations, including a number with contracts with the public sector, were identified as providing information on workers and using the list to exclude individuals from employment. These firms included Balfour Beatty, Sir Robert McAlpine, Amec and some subsidiaries of Carillion. Following the investigation, TCA was ruled to be in breach of the Data Protection Act 1998 and was closed down. Its Director, Ian Kerr, was fined €6,260.

The ICO has now taken control of the database which holds the list of workers that were blacklisted. However, only 350 of the people on the list are aware of the information that is held on them within the blacklist files. Most do not even realise that they had been blacklisted.

The ICO policy is that workers who believe they may be on the blacklist should contact its offices. If a file on them is in the database, an information pack will be sent out to them.

Government response

In March 2010, the then Labour government brought in new legislation to tackle blacklisting. The Employment Relations Act 1999 (Blacklists) Regulations 2010 made it unlawful for employers and employment agencies to refuse employment to, or dismiss workers, because they were on a blacklist in Great Britain. The legislation, however, is not retrospective and therefore does not apply to the victims of the TCA blacklist.

Unions have criticised the scope of the legislation because it only covers workers placed on a blacklist for union-related activities. They point out that a number of workers appear on TCA’s blacklist because they have reported health and safety concerns, or because they have been ill. The unions maintain that in the future these workers will continue to fall outside the scope of the protective legislation.

The Scottish Affairs Select Committee heard evidence in June 2012 about the practice of blacklisting construction workers. The committee investigation is likely to last at least six months. Campaigners have called for the UK government to launch a similar inquiry into the practice, but the Conservative and Liberal Democrat coalition government is reluctant to do so.

In Northern Ireland there is currently no legislation to outlaw blacklisting, although the result of a consultation process on legislation, Regulations to Prohibit the Blacklisting of Trade Unionists: Departmental Response to the Public Consultation (3.85Mb PDF), was published in May 2012. Unions strongly supported the introduction of this legislation.

The Confederation of British Industry (CBI) indicated that it believed blacklisting should not take place but registered strong opposition to new legislation in Northern Ireland, arguing that there was no evidence that the practice existed there.

The Department for Employment and Learning in Northern Ireland has indicated that it intends to publish legislation to prohibit blacklisting ‘at the earliest opportunity’.

Trade union and civil society response

Trade unions have been highly critical of companies engaging in blacklisting activity, and of the response of the ICO to the scandal.

The GMB union has been at the forefront of the campaign to ensure that people are told they are on the blacklist and have the opportunity to seek justice. The union has threatened legal action against the Information Commissioner, Sir Christopher Graham, if no further steps are taken to ensure disclosure to those people affected.

The Union of Construction, Allied Trades and Technicians ( UCATT) published a booklet on the practice, and in June 2012 lodged a test case in the European Court of Human Rights claiming that the UK government had breached workers’ human rights by failing to outlaw blacklisting.

In July 2012, the Blacklist Support Group (BSG) helped 86 workers launch a High Court claim against construction firm Sir Robert McAlpine alleging unlawful conspiracy. If proven, the claim could be worth up to GBP 600 million (about €751 million as at 9 November 2012.

Civil liberties pressure group Liberty and the GMB union have both written to the Information Commissioner to request that the investigation into the 44 companies subscribing to the blacklist be reopened. Both contend that the companies involved were likely to be in serious breach of privacy laws. Liberty’s Legal Officer, Corinna Ferguson, said: ‘We can't believe the inaction of the Information Commissioner on a human rights violation of such wide public interest.’

Commentary

The UCATT, Unite and GMB unions have all been vocal about the need to increase public awareness of the practice of blacklisting. In September 2012, at the annual conference of the UK’s Trades Union Congress (TUC), delegates unanimously supported calls for a day of action to support victims of blacklisting in the construction industry. The motion had been put forward by the GMB. It has not yet been decided what form such a day of action might take.

Sophie Gamwell, IRRU, University of Warwick