08 August 2012

By Sarah Glenister

Consecutive governments have failed to outlaw blacklisting - a practice used solely to discriminate against workers

At the end of July, it was reported that construction giant and developer of the Olympic Stadium Sir Robert McAlpine is being taken to the High Court charged with anti-trade union activity. Little more evidence is needed to prove UK law favours employers over workers than the cases of the 86 members of the prosecution - the Blacklist Support Group - who have accused the building company of conspiracy to keep trade union members out of the industry.

The engineers facing up to Sir Robert McAlpine have all suffered a similar experience. After becoming active trade union members in the construction industry, they were added to an extensive blacklist held by a private company called the Consulting Association (CA), and their details were sold to construction firms across the industry. As a result, they have struggled to find work and have effectively been locked out of the sector, conveniently reducing trade union activity in the industry and diminishing the impetus for employers to pay fair wages, provide decent terms and conditions, and follow basic safety protocols to protect their employees’ lives in a dangerous industry.

And why are the workers forced to take Sir Robert McAlpine to court on a conspiracy charge? Unbelievably, blacklisting – a practice which has the sole purpose of discriminating against workers and making their lives harder – is perfectly legal in the UK.

This situation continues despite an investigation in March 2009 by the Information Commissioner revealing that CA had over 3,000 workers on a blacklist, whose details were sold to 44 major construction companies. As a result of this revelation, workers were given the opportunity to find out if and why they had been blacklisted, but when it came to punishing CA and the firms that used the group’s services, little was done.

Eventually, CA’s owner Ian Kerr was prosecuted for breaking data protection laws and fined a paltry £5,000 for significantly damaging the livelihoods of a large number of workers, while the companies that bought the information got off scot free and the people whose names were on the blacklist were offered zero in way of compensation.

Following the case, the government launched a consultation into proposed regulations it was claimed would protect workers in the future. The Institute of Employment Rights (IER) responded to the call for evidence in Ruined Lives – a publication written on behalf of construction union UCATT. In the book, IER President Professor Keith Ewing argued that “it should be a criminal offence to supply, compile, solicit or use information in connection with a prohibited list”, and that workers who have suffered financial loss as a result of being blacklisted should be duly compensated.

But when the government responded to the evidence it received in December 2009, it became clear that what politicians described as “a reprehensible activity which had no place in modern employment relations” would be frowned upon, but not outlawed.

Instead, workers were granted the right to seek compensation if they could prove they had suffered a financial loss due to being blacklisted, but no criminal penalties would apply and there would be no automatic action to repay workers for their losses unless they went out of their way to file a convincing claim. Furthermore, protection against blacklisting only applies to trade union activities, not trade union-related activities, so unofficial action like whistleblowing, complaining about health and safety standards on site and even industrial action may not be covered by the law.

On the issue of compensating those who found themselves on the CA’s blacklist, the IER report suggested a quick, easy and efficient method. Keith Ewing proposed a retrospective compensation scheme similar to that introduced by the Tories in the 1980’s, arguing that such a scheme should be funded by a levy on those companies which made use of the blacklist.

So what was the precedent set by the Tories?

In a series of regulations throughout the 1980s and 1990s, the Tories not only banned the closed shop but also compensated those who claimed to have lost a job because they refused to join a union. Norman Tebbitt’s 1982 Employment Act saw compensation provided to closed shop employees who had been dismissed for not being part of a union, while all forms of closed shops were finally made strictly illegal under the Trade Union and Labour Relations (Consolidation) Act 1992.

The Tories had no difficulty passing laws to make this kind of trade union activity illegal, made no complaints that it would be difficult to compensate dismissed workers, and were happy to passionately proclaim closed shop activity unfair. But no government – Conservative or Labour – has yet been able to do the same for blacklisting. Why? As Keith Ewing said in his report:

“There is a compelling case for the introduction of a similar scheme to compensate those people who have been discriminated against not because they have been dismissed for non membership of a union, but because of their trade union activities. What is good for the goose is good for the gander”

It seems to us that the government’s blacklisting laws, and its avoidance of meaningful reform of those regulations, lays bare politicians’ warped relationship with big business. We vote partly to be protected from threats to our liberty, our health and our livelihoods, but again and again our representatives in parliament are seduced by corporate lobbyists to turn their back on the people and cosy up to those who seek to crush workers’ rights in the name of profit.

A version of this article was originally published in the Morning Star

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