Discusses the limited impact of the Employment Act 1999 (Blacklists) Regulations 2010. Notes recent developments, including the Employment Appeal Tribunal ruling in Miller v Interserve Industrial Services Ltd that a "mental list" of individuals a company did not wish to employ was sufficient for the Regulations to apply

Zahn, Rebecca

University of Strathclyde Institutional Repository

Strathprints Institutional RepositoryZahn, Rebecca (2014) Recent developments in blacklisting. Greens Employment Law Bulletin, 124. pp. 4-6. , This version is available at http://strathprints.strath.ac.uk/53854/Strathprints is  designed  to  allow  users  to  access  the  research  output  of  the  University  of Strathclyde. Unless otherwise explicitly stated on the manuscript, Copyright © and Moral Rights for the papers on this site are retained by the individual authors and/or other copyright owners. Please check the manuscript for details of any other licences that may have been applied. You may  not  engage  in  further  distribution  of  the  material  for  any  profitmaking  activities  or  any commercial gain. You may freely distribute both the url (http://strathprints.strath.ac.uk/) and the content of this paper for research or private study, educational, or not-for-profit purposes without prior permission or charge. Any  correspondence  concerning  this  service  should  be  sent  to  Strathprints  administrator: strathprints@strath.ac.uk1 This is a peer-reviewed, accepted author manuscript of: Recent developments in blacklisting. / Zahn, Rebecca. In: Greens Employment Law Bulletin, Vol. 124, 12.2014, p. 4-6. Recent Developments in Blacklisting Dr Rebecca Zahn, Lecturer, University of Stirling  The current blacklisting controversy first emerged in 2009 when the Information Commissionerǯ (ICO) revealed evidence of blacklisting by an organisation called The Consulting Association (TCA) which had provided approximately 40 companies in the construction sector with sensitive personal information about inter alia the trade union activities of over 3000 workers. In response, The Employment Act 1999 (Blacklists) Regulations 2010 were passed which (regulation 3) prohibit the compilation, use, sale or supply of any list ȋǮǯȌwhich contains details of any person who is, or has been, a member of a trade union or who has taken part in trade union activities. Regulation 5 allows for complaints to be made to an employment tribunal where an employer refuses employment to a worker whose name can be found on a prohibited list.  ǯ limited scope (particularly with regard to the absence of an investigatory regime and the lack of criminal penalties; ǤǡǮEmployment Relations Act 1999 (Blacklists) Regulations 2010 (2010) 39 Industrial Law Journal 300) has been widely criticised and it must be questioned to what extent they will be beneficial in restricting if not eradicating the practice of blacklisting. To date, the Regulations have been at issue in two cases before the Employment Appeal Tribunal (EAT): Maunders v Wellwise Group (Wellwise Oilfield Services Ltd) and others [2012] All ER (D) 93 (Aug) and Miller and others v Interserve Industrial Services Ltd [2013] ICR 445. In both cases, employees alleged a breach of regulations 3 and 5 on the basis that they had been denied employment on the grounds of being trade union members who had been involved in unofficial industrial action. In Maunders, it had been suggested to the claimant by a security guard when he was not allowed to enter his workplace that he had been blacklisted whereas in Miller, the claimants were refused employment at an oil depot after having been put forward for the jobs by their trade union. The claims were        Ǥ   ǯ cision in Maunders turned on a material irregularity and was remitted to the tribunal, the decision in Miller is more illustrative of the potential approach of the courts in interpreting the Regulations. In Miller, it was accepted that the employer had created a ǮǯǤǡthe tribunal did not   ǯ  claimantsǯ trade union activities. 2 This is a peer-reviewed, accepted author manuscript of: Recent developments in blacklisting. / Zahn, Rebecca. In: Greens Employment Law Bulletin, Vol. 124, 12.2014, p. 4-6. Instead, it found it justifiable   Ǯǯ employ the claimants and had, in response, ǮǯǤ The EAT agreed ǯ  by applying the Ǯbecause ofǯ test drawn from discrimination       ǯ principal reason for not employing the claimants. In addition, the EAT required trade union activities to have formed at least part of ǯs motivation (whether consciously or subconsciously) in not hiring the claimants.  In its analysis, the EAT found that  ǯ                 ǯunion activities. ǯ interesting for two reasons. First, the tribunal in effect widened the scope of regulation 3     Ǯ ǯ  sufficient for the Regulations to apply.  Second, the EAT has provided an indication of what it may accept  Ǯǯ  prevent a breach of the Regulations. The burden of proof in the Regulations is effectively reversed meaning that if there are facts from which a tribunal can infer that the employer breached the general prohibition contained in regulation 3 and in the absence of a reasonable explanation, the tribunal should find that the employer had acted in contravention of the Regulations. In Miller, the EAT recognised ǯǮǯ for the use of a list prohibited under regulation 3. Such acceptance of a margin of subjectivity in favour of the employer will make it difficult for workers to rely on the Regulations in the absence of specific proof that an employer refused employment on the grounds of trade union activities. However, as blacklisting is by its very nature a covert act which is difficult to prove, this in effect puts into doubt the added value of the Regulations.  It is ǯacross the judicial system. There have been numerous claims brought against individual ǯǤ For the most part these were lodged prior to the introduction of the Regulations and alleged a breach of either s137, s146 or ss152-3 of the Trade Union and Labour Relations (Consolidation) Act 1992 which protect individuals against the denial of employment, detriment, dismissal or selection for redundancy on the grounds of trade union membership. The vast majority of claims failed the pre-hearing review stage as claimants had either exceeded the time limit for bringing a claim; the employer who had engaged in 3 This is a peer-reviewed, accepted author manuscript of: Recent developments in blacklisting. / Zahn, Rebecca. In: Greens Employment Law Bulletin, Vol. 124, 12.2014, p. 4-6. blacklisting had ceased to exist; or, there was insufficient proof that refusal of employment, detriment or dismissal had actually occurred on the grounds of an ǯ   Ǥ One case which progressed to a full hearing but in which the claimant was ultimately unsuccessful paved the way for the Union of Construction, Allied Trades and Technicians (UCATT) to lodge a test case in August 2011 with the European Court of Human Rights on behalf of one of its members: Brough v The UK, Case number 52962/11. The applicant primarily alleges a breach of the right to  ? ?ǯto provide any or sufficient protection from blacklisting as well as adequate penalties for perpetrators and remedies for victims of blacklisting. The case is currently pending with the Court having sent a number of questions to the parties.   More recently, in March 2012, a group of workers brought a claim in the High Court against eleven construction companies involved in blacklisting. Separate claims were issued by a number of trade unions (GMB, UNITE and UCATT) between June and November 2013; all of which have since been consolidated by way of a Group Litigation Order. The case is expected to conclude by April 2016 at the latest. In July 2014, eight of the companies affected by the High Court aǮThe Construction ǯ  ǯ (TCWCS) which operates both fast-track and full review processes offering between £4,000 - £20,000 (under the former) and £100,000 (under the latter) in compensation for construction workers whose names were found ǯǤWhile the TCWCS aims to resolve claims within two weeks through the fast-track process and within three to six months in the case of a full review, there would be no admission of liability on the part of the companies. The TCWCS also offers to cover any legal costs of workers involved in the High Court case wishing to join the scheme in return for their withdrawal from the court action. The Scheme is to remain open for two years. The TCWCS has been heavily criticised by trade unions and campaigners. In July 2014, a number of individuals involved in the TCWCS appeared before the House of Commǯ Scottish Affairs Committee which also suggested a number of changes to be made to the Scheme including extending its operation to three years and making provision for the payment of interim damages which could be increased following the decision in the High Court action. 4 This is a peer-reviewed, accepted author manuscript of: Recent developments in blacklisting. / Zahn, Rebecca. In: Greens Employment Law Bulletin, Vol. 124, 12.2014, p. 4-6.  The Regulations seem to have had little impact on restricting the practice of blacklisting. In April 2011, the Scottish Affairs Committee in the course of an Inquiry into Health and Safety in Scotland found evidence that workers who raised health and safety concerns ǮǯǤ ? ? ? ?by the Committee (Blacklisting in Employment) into the extent of blacklisting in Scotland and to make proposals for its eradication. A first interim report which focussed predominantly on historical practices of blacklisting along with ǯ  published on 16 April 2013; a second report identifying best practice approaches was published on 14 March 2014. The latter report considered the possibility of following     ǯ   ȋ-mandatory) requirements which prohibit enterprises known to have engaged in blacklisting from taking part in public procurement for public contracts until they Ǯ-ǯǤThe report also considered the introduction of a compensation scheme for affected workers and endorsed direct employment and transparent recruitment practices as standard for all public sector contracts in the construction industry. The Committee is currently collecting further evidence, particularly on possible legislative reforms aimed at eradicating blacklisting, before it submits its final recommendations to the Government.   The blacklisting controversy has been ongoing for a number of years. The Regulations introduced in 2010 have had little impact in practice and further changes to the Regulations seem necessary if they are to fulfil their aim of limiting or eradicating the practice of blacklisting. In particular, the question of penalties for those who engage in blacklisting has not been adequately addressed. The outcome of the pending High Court ǯ Inquiry into Blacklisting in Employment could be particularly influential in this regard. It remains to be seen what, if any, impact the unilateral introduction of the TCWCS will have on the High Court case. While the decision of the European Court of Human Rights is not expected for some time and depending on its outcome, it could also pave the way for the UK government to introduce more stringent legislation in this regard. What seems obvious is that the current controversy is unlikely to subside without further legislative attempts being 5 This is a peer-reviewed, accepted author manuscript of: Recent developments in blacklisting. / Zahn, Rebecca. In: Greens Employment Law Bulletin, Vol. 124, 12.2014, p. 4-6. made to limit or eradicate the practice of blacklisting which seems to stretch far beyond the historical evidence revealed by the ICO in 2009.   

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