27 March 2018

By Alex Just, employment and trade union law expert

Friday's admission by the Metropolitan Police that special branch officers colluded in the blacklisting of construction workers came as no surprise to the thousands of people whose livelihoods were destroyed by the blacklisting scandal. For years, we knew that police officers met with The Consulting Association (TCA) – a blacklist operation run by 44 major construction firms – and infiltrated union meetings and pickets. As one of the barristers who represented hundreds of blacklisting victims in their 2016 High Court case – at which 24 firms publicly admitted to having run an illegal blacklist – I have seen first-hand the devastation that years of joblessness wrought on innocent workers and their families. Unions are right to call for a public inquiry to bring those responsible to account. Secretary of the Blacklist Support Group, Dave Smith, and I joined that call in our recent report for the Institute of Employment Rights (IER): Blacklisting: the need for a public inquiry.

But if we are to prevent this scandal from happening again, we must go further and change the law. Drawing from the experiences of workers blacklisted by TCA and the barriers they faced in their fight for justice, I ended our IER report with a Manifesto Against Blacklisting – a set of proposals that lay the groundwork for a new Blacklisting Act.

First, blacklisting must attract much tougher penalties. Currently, it is considered a civil offence, which meant that the firms (and their directors) responsible for the TCA scandal could force an out-of-court settlement, walk away without any official conviction of guilt, and go straight back to picking up government contracts worth billions. Blacklisting must be made a criminal offence and key board members and staff must be held personally accountable, facing prison sentences, significant fines and bans from holding Directorships. Further, Westminster should adopt the public procurement rules successfully rolled out by the Welsh Assembly in 2013, which ban any firm found guilty of blacklisting from bidding on government tenders.

Second, we must use the law to change HR culture. There is still a lack of understanding among HR professionals around workers' data protection rights and what activities constitute blacklisting. There should be a duty on employers to provide training on these issues; benchmarking initiatives should be updated to require that firms demonstrate they take blacklisting seriously; and whistleblower protections must be strengthened to make it safer for people to speak out if they see evidence of blacklisting at work.

Third, the Information Commissioner's Office (ICO) – the body responsible for investigating blacklisting – must get the resources it needs to do its job. Incredibly, in its 2009 raid of TCA, the ICO only seized 5-10% of the paperwork held by the blacklister (TCA CEO Ian Kerr later admitted to burning the rest on a bonfire). It also returned a computer to Kerr without turning it on to investigate its contents, neglected to inspect the offices of any of the 44 firms known to operate TCA, and did nothing to follow up on those companies that ignored its enforcement notices. The ICO should be given access to the same technological resources as the UK National Crime Agency (NCA) specialist cybercrime unit, and be empowered to work in tandem with the NCA and Crown Prosecution Service where appropriate. It should be given the power to inspect firms for blacklisting activity proactively and unannounced. The ICO website should be updated to double as a database of firms involved in blacklisting so public bodies can ensure they are excluded from tendering processes.

Finally, a new UK Data Court should be established to ensure employers cannot dodge accountability. This court should hear civil and criminal cases jointly and have the power to subpoena witnesses so that senior executives cannot avoid giving evidence. Workers should be permitted to bring their case up to 10 years after wrongdoing if evidence of blacklisting has only recently been uncovered, and employers should only be allowed to offer out-of-court settlements in civil cases after the conclusion of their criminal trial.

In short, there is still much to do to ensure blacklisting never happens on an industrial scale again in the UK.

This piece originally appeared in Left Foot Forward