Blacklisting

Blacklisting

ownup-payup-blacklisting.jpg

Blacklisting.jpg

In 2009, the Information Commissioner’s Office (ICO) exposed details of a large-scale surveillance operation run by a company called The Consulting Association.  This company collated files on thousands of construction workers, as well as academics and journalists, and sold the information to 44 construction companies.  The Director of The Consulting Association, Ian Kerr, was fined just £5,000 and all 44 companies escaped without penalty or punishment.

Many of these workers had their lives ruined, unable to find employment in the construction industry, blacklisted for their trade union activities or for raising health and safety concerns.

A recent court case revealed that the police and security services may have been complicit in The 
Consulting Association’s activities and in October 2012, the ICO admitted to the Scottish Affairs Select Committee that they had seized only 5 - 10% of the files held by The Consulting Association.

UCATT is campaigning for a public inquiry into the blacklisting scandal and for the ICO to directly notify all persons listed on The Consulting Association blacklist files, in the same way victims were notified in the newspaper phone hacking scandal.

Companies guilty of blacklisting must be barred from tendering for publicly procured contracts and compensation must be paid retrospectively to all victims of blacklisting for loss of earnings.

The existing blacklisting regulations offer no protection.  It must be a criminal offense to supply, compile, solicit or use information in connection with a prohibited list.  The blacklisting of workers must no longer be part of our society.

UCATT Launces Major Legal Action

UCATT has commenced legal proceedings aginst many of the companies involved in the Consulting Association blacklisting of construction workers. The cases were launched on November 20th to coincide with the TUC's day of action against Blacklisting. UCATT is taking action aginst Skanska, Balfour Beatty, BAM, CB&I, Costain, Carillion, Lend Lease, and Sir Robert McAlpine. In a further development, the union is also taking legal action a senior manager of a high profile blacklisting construction company and previous chair of the Consulting Association.

UCATT has commenced legal proceedings against many of the companies involved in the Consulting Association’s blacklist of construction workers. The union has launched the court cases to coincide with the TUC’s anti-blacklisting day of action which takes place today (20th November).

The cases taken on behalf of UCATT members who were blacklisted, concern the misuse of private information and breach of confidence due to the personal information which was contained in their files.

UCATT has employed the services of Mark Warby QC, a leading expert on privacy law, to take the cases on behalf of its members.

The companies that UCATT is taking action against include: Skanska, Balfour Beatty, Bam, CB&I, Costain, Carillion, Laing O’Rourke, Lend Lease, Sir Robert McAlpine and Vinci. In addition, and uniquely UCATT are to commence legal action against an individual who held the position of chair of the Consulting Association and was a senior HR manager for a major blacklisting company.

- See more at: http://www.ucatt.org.uk/ucatt-launches-major-legal-action-against-blackl...

UCATT has commenced legal proceedings against many of the companies involved in the Consulting Association’s blacklist of construction workers. The union has launched the court cases to coincide with the TUC’s anti-blacklisting day of action which takes place today (20th November).

The cases taken on behalf of UCATT members who were blacklisted, concern the misuse of private information and breach of confidence due to the personal information which was contained in their files.

UCATT has employed the services of Mark Warby QC, a leading expert on privacy law, to take the cases on behalf of its members.

The companies that UCATT is taking action against include: Skanska, Balfour Beatty, Bam, CB&I, Costain, Carillion, Laing O’Rourke, Lend Lease, Sir Robert McAlpine and Vinci. In addition, and uniquely UCATT are to commence legal action against an individual who held the position of chair of the Consulting Association and was a senior HR manager for a major blacklisting company.

- See more at: http://www.ucatt.org.uk/ucatt-launches-major-legal-action-against-blackl...

UCATT supports case to the European Court of Human Rights

Given the difficulty of proving detriment in an employment tribunal, especially in an industry where job applications are not usually through CVs and interviews, the vast majority of employment tribunal cases have been dismissed. In many cases the main contractors doing the blacklisting, were not employing the workers, who were seeking employment via sub-contractors and agencies.

As British courts have failed to provide justice for the blacklist victims, UCATT has taken the campaign to Europe. In 2011 we lodged a test case with the European Court of Human Rights, on behalf of one of our members. The case is simple, that the failure of successive Governments to outlaw blacklisting breached workers’ human rights. This failure breached the European Convention on Human Rights under Article 11 on freedom of association – in other words, the right of individuals to join and form trade unions -and Article 14 on anti-discrimination. We expect to hear from the ECHR by the end of the year that they have contacted the British Government, the first stage of a long legal process. A decision is not likely for some time.

UCATT demands action by the Information Commissioner’s Office

Since 2009 UCATT has been demanding action by the Information Commissioner’s Office (ICO) – the Government-appointed watchdog on data protection and privacy – on the blacklist that the ICO seized from the Consulting Association that year.

The union applied to the ICO for disclosure of all entries relating to UCATT. However, the application was refused by the ICO, a decision that was upheld on appeal in July 2011. But the door was left open for the union to pursue the disclosure of individual files concerning UCATT. Lawyers for the union have been in discussions with the ICO on how this can be done.

Meanwhile, a group of blacklisted workers had applied to the High Court against some of the companies who accessed the Consulting Association's blacklist, claiming breaches of the Data Protection Act and conspiracy.

In November 2013, over four and a half years after the Consulting Association's files were seized the ICO begun to contact some of the blacklsited workers who had not requested thie files.

UCATT strongly critised the ICO for providing, in our view, misleading and harmful advice to workers who have just dicovered they are on the blacklist. The factsheet sent out to workers suggests that people not members of a union should contact the Construction Workers Compensation Scheme, and goes on to say that the group of companies behind the scheme are discussing it with employee representatives. This is not the case. UCATT advise any person in receipt of a letter from the ICO informing them that is likely they have been blacklisted, to contact the union for advice.

The blacklisting scandal: The Consulting Association

Until 2010 there was no general prohibition of blacklisting. Even the regulations introduced following the Consulting Association scandal of 2009 do not criminalise blacklisting or provide a straightforward right to compensation for victims. If and when further blacklists are discovered, it is not certain that the victims will be much better off than those on the Consulting Association's blacklist, who until now and despite UCATT’s efforts have been unable to secure compensation.

It was in 2009 that proof was found that blacklisting was being systematically carried out in construction. The Consulting Association’s blacklist contained details of over 3,200 individuals and was being used by more than 40 contractors, including most major UK construction firms. This revelation also highlighted the inadequacies of the legal protection available to victims. Since 1999, legislation had given UK Governments the power to pass regulations against blacklisting, but they failed to do so. Only a year before the blacklist was uncovered, UCATT had been lobbying the Government to pass regulations, only to be told that there was no need for them at the time. In 1992, the TUC complained to the UN’s International Labour Organisation that there was no effective protection against discrimination suffered by blacklisted workers. The ILO Freedom of Association Committee upheld the complaint as UK law fell short of Article 98 of the ILO convention. Regrettably the Government failed to act.

With no legislation outlawing blacklisting, Ian Kerr, head of the Consulting Association, was convicted under the Data Protection Act 1998 for:

  • processing personal date without being registered
  • failing to register with the ICO
  • not being on the registry of data controllers.

On 16 July 2009 Kerr was fined £5,000 by Knutsford Crown Court. If his sentence was light, the companies who used the Consulting Association blacklist were treated even more leniently. Those firms who accessed the blacklist were neither charged with any offence nor ordered to pay compensation to the workers involved.

The ICO explained its failure to take action against construction companies in a press release dated 4 August 2009, which stated that “…it is not a criminal offence to breach the data protection principles, which is why the ICO chose only to prosecute Ian Kerr for failing to notify as a data controller”.

UCATT publicised the existence of the Consulting Association blacklist to its membership. Many members applied to the ICO for copies of entries against their name, many of which went back 20 years or more. Entries were usually dated and referred to employers in code. Some employers could not be identified.The ICO redacted the names of individuals mentioned in the blacklist before sending out copies. This made it difficult for some members to pursue claims.

The need for better protection for workers

In the absence of laws against blacklisting, members could only pursue claims if they could prove that the blacklist had been used to the detriment of their employment rights or had breached the Data Protection Act (DPA). Under the DPA workers can only claim compensation if they prove that they have suffered damage as a result of blacklisting. This resulted in a series of unsatisfactory outcomes. Although settlements were achieved in a handful of cases, the majority of UCATT members who found their names on the Consulting Association's blacklist neither got to a full hearing nor received compensation.

Laws against discrimination on grounds of trade union membership or activities are far from ideal. But this was the only piece of legislation that could be used against employers who had accessed the blacklist. Most claims were based on rights contained in the Trade Union and Labour Relations (Consolidation) Act 1992:

  • refusal of employment due to union membership or activities
  • detriment due to union membership or activities
  • dismissal due to union membership or activities
  • selection for redundancy due to union membership or activities.

Employment tribunal cases were started by many blacklisted workers. As many of the blacklist entries went back 20 or 30 years, it was often impossible for them to obtain any evidence to prove their case. The tribunals applied a stringent assessment procedure. Many cases fell foul of strict time limit restrictions. Generally, there is a three-month time limit to pursue an employment tribunal case. Clearly three months would be inappropriate to a case involving blacklist entries, many years old, which had only just been discovered.

Nevertheless, tribunals ruled out cases where they took the view that the blacklisted individual had not acted quickly enough. If the tribunal thought that it had taken too long to access the blacklist entries or alternatively too long after that to lodge a claim, cases were struck out at an early stage and could not be pursued any further.Other cases proved difficult to pursue for practical reasons. Some employers who accessed the blacklists were not identified by the ICO. Other employers had long since gone out of business and could not be pursued through the tribunals.

Go to top