31 July 2013

Business Secretary Vince Cable has said the law will be tough on blacklisting if the practice is exposed at Crossrail, but how much faith should we have in his words?

"Blacklisting is an unacceptable and illegal practice and we take any allegations of blacklisting very seriously," the Guardian reported the Minister as saying. "Perpetrators can expect to feel the full force of the law".

If Cable was proposing that the multinational consortium in charge of Crossrail – Bam, Ferrovial and Kier (BFK) – would be charged with a criminal offence and all victims of blacklisting would be reasonably compensated, his words would be something to celebrate. But instead his promises ring hollow against a backdrop of Coalition denial of ongoing blacklisting in the construction industry, and its stubbornness that the law against the practice need not be strengthened. What's more, after Chairman of the Scottish Affairs Select Committee Ian Davidson wrote to him calling for an investigation into Crossrail, Cable's response was to delegate the matter to the Information Commissioner's Office (ICO) – the same organisation that raided The Consulting Association's (TCA) offices in 2009. Although the ICO was able to find huge amounts of evidence that TCA had blacklisted thousands of construction workers, many of whom were unable to work in the industry ever again, the most the 40+ companies involved suffered was a slap on the wrist. Meanwhile, Chief Executive Officer of TCA Ian Kerr was fined £5,000 for breaking data protection laws, which he claims was paid by Sir Robert McAlpine.

The law has since been changed by the former Labour government, but as the Institute of Employment Rights (IER) highlighted at the time, the reforms did not go anywhere near far enough.

President of the IER Keith Ewing said: "No doubt driven by a desire not to offend big business, the government’s original proposals failed even to provide a right not to be blacklisted. Workers were expected to be pleased that there would be a right to recover compensation if they could prove that they had suffered loss as a result of having been blacklisted. There would be no automatic compensation for being blacklisted, and no criminal penalties."

"Blacklisting should be a criminal offence. Full stop," he argued.

The reforms also protected only those engaged in 'trade union activities', not 'trade union-related activities', leaving it up to the courts to decide what that means; as well as making virtually no changes to the law on vetting practices, and laying the burden of proof at the door of the worker who believes he has been blacklisted, rather than with the employer. With blacklisting known to be a very secretive practice, thus very difficult to prove, this is more than unhelpful to workers who are struggling to find any work at all.

Indeed, Ewing described the new reforms as "a law carefully constructed never to be used". So even if BFK was to receive the "full force of the law" as Cable promises, it will be barely feel it.

The Institute of Employment Rights believes that a guaranteed minimum amount of compensation should be provided to anyone who is found to have been blacklisted, and crucially that blacklisting must be made illegal. A public inquiry must be held to reveal the scale of blacklisting and to formulate ways to properly punish those who have been engaged in the practice, while providing a real disincentive to employers currently vetting their workers for trade union activity.