12 July 2013

The issue of blacklisting has been brought up in parliament numerous times, but the Coalition has stated that it feels there is no need to change legislation as there is no evidence that the practice is ongoing.

But now Unite the Union has provided the Scottish Affairs Committee with evidence that blacklisting may still be underway on the Crossrail site - the largest engineering project in Europe - and that the practice is being undertaken by Bam Nuttall and Kier of the Bam, Ferrovial and Kier (BFK) construction consortium that is contracted to the project.

Assistant General Secretary of Unite, Gail Cartmail, stood before the Scottish Affairs Committee on Tuesday 02 July 2013 and recounted what evidence she had for contemporary blacklisting at the site. As Gail herself admitted, the evidence itself is circumstantial, as it is exceptionally difficult to prove that such a covert operation as blacklisting is underway. However, when heard together, this evidence was enough to make a substantial impression on the Committee, which has openly stated it is suspicious of the claim that blacklisting is a thing of the past.

Evidence that Crossrail has links to The Consulting Association

The Committee had previously heard from Ian Kerr, former Chief Executive Officer of The Consulting Association (TCA) - a known blacklisting organisation that was raided by the Information Commissioner's Office in 2009 - that there had been many discussions about vetting potential employees on the Crossrail project, with particular reference to the Jubilee Line. Cartmail highlighted this statement as evidence that Bam and Kier were interested in using a blacklist to guide their recruitment process for the contract. She argued that Ferrovial - a Spanish construction company - is likely to have been uninvolved in any blacklisting practices on the site, as the firm seemed deeply concerned at the evidence pointing to such operations when Unite presented it. Additionally, Ferrovial has historically maintained good relations with trade unions in Spain.

Cartmail further reported that 48% of TCA contacts, who were responsible for the vetting of potential staff against the blacklist, are now working for BFK within HR roles on the Crossrail project. She specifically focused on two contacts: Ron Barron and Pat Swift, the latter of which is the HR boss at BFK, and both of whom were involved in the main section of evidence Unite were able to present to the committee.

"We know that Pat Swift was in charge of systematic vetting of workers and that systematic vetting of workers was required by BFK — not only of its own workers but also of those workers working for subcontracting companies," she said.

Evidence of the dismissal of blacklisted trade unionists

One such contractor was electric firm EIS, the Crossrail contract of which has been terminated in suspicious circumstances, after which the company went into liquidation. The Managing Director of EIS Ron Turner has spoken to Unite about his experience with BFK and, in particular, Pat Swift.

Quoting Mr Turner's evidence, Cartmail said he was approached by BFK manager Mr Horillo before the start of June 2012 and was told there was a problem with one of his workers - electrician, Frank Morris "because he was known to be a trade unionist who had caused trouble".

Mr Turner continued that he later visited BFK's main office at Westbourne Park, where he said Swift had approached him and asked why Mr Morris had been employed, seeing as he was reported as having "caused a lot of trouble" on the Olympics project. Mr Turner told Swift that the initial induction form process - which BFK ran on all new employees and the employees of subcontractors in order to vet them - should have discovered any evidence of such activity. He refused to dismiss Mr Morris.

However, on site, Mr Morris began to feel victimised at work, as other workers stopped talking to him - including a general foreman - and BFK manager Steve Miller suddenly began asking a lot of questions about trade unions. To protect himself, Mr Morris applied to become a shop steward on the site because those in this role are protected against victimisation. After making this move, however, things only got worse from him. He was sent to work on projects that would keep in isolated from other workers, and eventually EIS' contract was terminated, resulting in the loss of not just Mr Morris' job, but the jobs of 27 others, and the eventual crippling of the subcontractor itself. It is not possible that EIS' contract was terminated due to problems with its work, because it had recently been granted an 18-month extension to its contract. BFK claimed the work EIS was undertaking had been finished, but it is evident this is not true either, as other contractors took over where EIS had left off.

Cartmail became involved in the case and began the process of conciliation between Mr Morris and Mr Swift. She was unaware of Mr Swift's reputation as a blacklister, but told the Committee that had she known some of the things Mr Swift said to her would have made more sense. For instance, the financial settlement he offered was exactly the same as that of another Unite member, Mr Willis. The employment tribunal which examined Mr Willis' case criticised the absence of Ron Barron, employed by Crossrail in an HR capacity and a main contact at TCA, who was deeply involved in the treatment of Mr Willis. Cartmail argued that there must be some method of sharing information about cases such as Mr Willis' in order for Mr Swift to have offered exactly the same deal won by that claimant to Mr Morris.

Furthermore, during the ACAS conciliation process, Mr Swift described Mr Morris as "unemployable", partly on the basis that after he had been dismissed from the Crossrail site he protested outside of Westbourne Park.

It is believed that BFK slipped up in its initial vetting process and that Mr Morris was allowed to work on the site despite having been involved in trade union activity in the past. Cartmail pointed out that for Mr Swift to have been able to identify Mr Morris' name on Mr Turner's list of workers, he must have had some kind of list available to him to crosscheck employees against. Although Mr Morris' name was not on the TCA blacklist, it was on a blacklist leaked by whistleblower Alan Wainwright, and it is possible other lists continue to exist. Whether this is in the traditional form of a blacklist, or whether information is spread by word of mouth or other means is not certain, but as Ian Kerr told the Committee last year, it is likely that blacklisting continues in the construction industry "in some form or another".

Evidence of the dismissal of those who raise health and safety concerns

Mr Morris' was not the only shocking story to be shared with the Committee, as there is also the case of EIS foreman Garry Gargett. Mr Gargett noticed a serious hazard - that of scaffolding material thrown on top of an 11,000-volt cable - and took photographs of it to share with his supervisor. However, he was intersected by BFK manager Mr Horillo and was immediately suspended from his job. Mr Horillo accused Mr Gargett of intending to share his photographs with the press or post them on the internet. Later, a worker on the Holborn section of the project was airlifted to hospital when he suffered 60% burns to his body after cutting through a live cable of a similar voltage.

Unite's recommendations to the Committee

Cartmail recommended that the burden of proof when it comes to an accusation of blacklisting should fall on the employer, not trade unions or workers, as it is nigh impossible to find concrete evidence of such a covert operation without the blacklister slipping up somewhere along the way. The two lists that have been discovered so far have come about because of a raid by the ICO on TCA, and because of a leak organised by a whistleblower.

"We are all on the edge of our seats wondering how next another list will be exposed," she commented. "The burden of proof on a trade union, for example, or any party — any individual — to prove blacklisting is very heavy, because it is underground and secretive and nobody admits to it."

She continued: "This is an absolutely typical, classic example, except that they made a mistake—they slipped up. A heavy price was paid by the owner of EIS and 27 other people for that slip-up."

Click here to find out more about blacklisting