Category Archives: Anti-trade-union measures

The long history of blacklisting outspoken workers in the UK

Statewatch article: RefNo# 33255
“Every Man a Capitalist”: The long history of monitoring ‘unsuitable’ workers in the UK by Trevor Hemmings, Statewatch
Statewatch Journal; vol 23 no 2 August 2013
“Blacklisting is the practice of systematically denying individuals employment on the basis of information, accurate or not, held in some kind of database.” [1]

In February 2009, investigators from the Information Commissioner’s Office (ICO) raided the premises of The Consulting Association (TCA) in Droitwich, West Midlands, confiscating a database comprising 3,213 names that was being used by 43 construction firms to blacklist workers they deemed “unsuitable” for employment. [2] The seized database was only a small fraction of the information held by TCA, but inexplicably the bulk of the data was left behind and subsequently destroyed. Clandestine blacklisting by multinational construction companies, who submitted the names and addresses for vetting by TCA, denied employment to thousands of workers on the basis of their trade union membership, political beliefs and health and safety activities. [3] Information held in the database was often based on little more than “gossip.” As a consequence of the raid, in July 2009 the director of TCA, Ian Kerr, was fined £5,000 after admitting breaching the Data Protection Act, but his fine was paid secretly by Sir Robert McAlpine on condition that the company’s name was not revealed. [4] Kerr died a fortnight later, taking unknown secrets to the grave.

As a result of the high profile raid, the practice of blacklisting was belatedly made illegal in March 2010 by the introduction of the Employment Relations Act 1999 (Blacklisting) Regulations 2010, under which it is unlawful to compile, sell, use or supply a prohibited list (a list which contains details of people who have been members of Trade Unions or have participated in Trade Union activities). The law has been criticised by trade unionists as being too little, too late. Article 11 of the European Convention on Human Rights, which has been in force since 1953, protects “the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions.” [5]

In July 2012, 80+ blacklisted workers launched a High Court action against the construction firm Sir Robert McAlpine, a Conservative Party donor and builder of the Olympic Stadium, for the firm’s alleged role in creating TCA and cooperating with other firms to keep them out of work. [6] The head of McAlpine’s Human Resources department, David Cochrane, chaired TCA from 2006-2009 and the company effectively set up and funded it. Further insights into this “real live conspiracy” emerged when the House of Commons Scottish Affairs Committee heard evidence from a number of the key players and their victims in November 2012, some of which was later written up in an interim report published in April 2013. [7] The interim report was highly critical of the companies which failed to take responsibility for their “morally indefensible” blacklisting practices.

In January 2013, a House of Commons debate [8] moved by Labour MP Chukka Umana discussed police and security service collusion in the blacklisting and suggested that at least 200 environmental activists were also among those under surveillance by TCA. Umana told the Guardian newspaper:

“Very serious allegations have been raised, including by a serving ICO official who is himself a former police officer, that information contained on the blacklist files came from police and security services. This only reinforces the need for a full investigation into blacklisting so we can get the full truth of what went on.” [9]

In February 2013, the Metropolitan police reluctantly launched an investigation into allegations of collusion in the blacklisting of construction workers. The Met had previously dismissed a complaint from the Blacklist Support Group (BSG) which claimed the police had been involved in compiling the blacklist that came to light in the ICO raid. [10]

A brief history of the Economic League

The twentieth century was dominated by the role played by the right-wing Economic League (EL) in “countering subversion” between 1919 and 1993. Its early years are opaque, although works by investigative journalists such as Mike Hughes, Mark Hollingsworth and Richard Norton-Taylor have thrown some light on this period. [11] The father to TCA, the Economic League was formed in 1919 to fight Bolshevism, combat the “red infection” and “crusade” for unregulated free-market capitalism. The League emerged from various cliques of industrialists, such as National Propaganda (NP), which had close links to the early intelligence services and military. [12] In 1925 the Economic League became a permanent organisation under its first director-general, John Baker White, who had been an intelligence officer and had maintained the security links that formed the basis of the League’s data collection and blacklisting services. As Mike Hughes has pointed out, the Economic League had dual objectives: its council members, pillars of the establishment and other powerful men, opposed socialism overtly, while at a covert level they began to establish the framework of a shadow state. One early anti-democratic activity was a campaign to break the 1926 General Strike under the slogan “Every Man a Capitalist.” [13]

Throughout the 1920s and 1930s, the EL compiled records on trade union organisers, socialists and communists, sometimes based on information which originated from police files. There is also well-documented evidence that the EL and British intelligence agencies were cooperating at this time. [14] Despite this, the influence the League exerted on the British state over its first two decades had diminished by the Second World War when its model of unregulated free-enterprise came into conflict with the mixed economy supported by the mainstream Conservative Party, which was in government between 1951 and 1964. [15]

From the 1960s, a number of investigations, most notably by the Labour Research team, [16] published details of the blacklisting of workers, a practice the EL continued to deny until the 1969 publication of A Subversive Guide to the Economic League, [17] which revealed that in 1968 the organisation had an annual income of £266,000, £61,000 of which was contributed by 154 companies. Twenty-one known banks and financial institutions contributed as much as 47 manufacturing companies. According to the State Research Bulletin, in 1977 the top industrial donors to the Economic League were: Tate & Lyle; Imperial Group; Shell Petroleum Company; National Westminster Bank; Barclays Bank; Midland Bank and Lloyds Bank. The top four banks of the day were not only among the EL’s donors, four of their directors sat on the organisation’s Council. [18] Hollingsworth and Norton-Taylor cite a figure of £1m in annual income and 2,000 subscribers for the EL in their 1988 work, Blacklist. [19]

The EL’s profile became even more visible in the 1980s as investigative journalists delved deep into its clandestine activities to reveal more names of companies that were vetting the politics of potential employees. This information also showed that the EL worked with MI5 to blacklist more than 22,000 “subversive workers”, who ranged from trade unionists to individuals speaking up for work mates to anti-nuclear activists. [20] In light of these disclosures, in 1990 the House of Commons Select Committee on Employment heard evidence from the Economic League about its blacklist. This enabled campaigners and investigative journalists to exert further pressure on the organisation. The investigative journalist, Paul Foot, managed to obtain a complete copy of the EL’s blacklist and ran a series of pivotal stories in the Daily Mirror newspaper. Its practices exposed to the public, the EL was wound up in 1993. Data protection laws meant that it would have had to open its files to further scrutiny, revealing personal data on thousands of shopfloor workers, prominent trade unionists, journalists, political activists and Labour Party MPs. [21]

A chip off the old block: The Consulting Association

The Consulting Association grew out of the Economic League’s Services Group, whose membership was comprised of construction firms. A key link between the EL and TCA was Ian Kerr, who had played a lead role in the League for many years before becoming TCA’s chief officer. Unlike those he blacklisted and made unemployable (and in some instances destitute), while employed by TCA Kerr earned an annual salary of £50,000 plus bonus, had BUPA medical insurance and drove a Mercedes car. [22] Kerr gave evidence to the Scottish Affairs Committee shortly before he died, stating that TCA was founded in April 1993 with a £10,000 loan from Sir Robert McAlpine:

“[The Consulting Association] was started out of the Services Group (SG), operated by and within the Economic League (EL). A Steering Committee of key people in construction companies of the Services Group drafted a constitution. Key operating features of TCA were decided by representatives of the major construction companies, who were the original members.” [23]

TCA operated from 1993 until 2009. Unfortunately the full extent of its operations may never be known as the ICO seized “only a small proportion of the documentation” held at TCA’s Droitwich office. David Clancy from the ICO told the HSAC that:

“We are talking of between 5% and 10% of what was in the office. What the other 90% or 95% was I can’t comment on because we didn’t go through lots of it.” [24]

Clancy argued that it had been unnecessary to look at anything else because he had “found the blacklist.” However, TCA’s Ian Kerr, giving evidence to the same committee, admitted that other information was held “including some files on environmental activists. These were not taken away by the ICO and were subsequently destroyed.”

Blacklist Support Group vs. Captains of Industry

The Blacklist Support Group (BSG) is a network of construction workers who have been blacklisted because of their trade union activities. [25] The network has run a campaign to “name and shame” the top construction company bosses who have chaired TCA and have also named the construction industry’s ‘main contacts’ with the covert blacklisting organisation. [26] The Group has published a list of company directors that have chaired TCA:

1993-1996 Cullum McAlpine (Sir Robert McAlpine)

1997-1999 Tony Jennings (Laing O’Rourke)

2000-2001 Danny O’Sullivan (Kier)

2002-2003 Stephen Quant (Skanska)

2004-2005 Trevor Watchman (Balfour Beatty)

2006-2009 David Cochrane (Sir Robert McAlpine)

The BSG is seeking to “blacklist the blacklisters” and asks: Where are they working now? Are they involved in publicly funded contracts?
The BSG has also demanded compensation for blacklisted workers and that the companies responsible for their loss of earnings be made accountable for their actions. BSG is demanding:

• A full public apology,

• Compensation for blacklisted workers,

• Denial of public contracts for blacklisting firms,

• Jobs for blacklisted workers on major projects.

Big spenders

The journal Building published a detailed analysis of the spending of 14 of TCA’s main users in a report entitled “Annual Spending by the Consulting Association 1996-2009.” [27] The main players were Sir Robert McAlpine and Skanska, each spending well over £200,000. They were followed by Laing O’Rourke and Balfour Beatty which both spent more than £100,000, with Carillion and Amec both spending around £70,000.

The Scottish Affairs Committee report also details the roles played by three major construction firms: Sir Robert MacAlpine Ltd, Skanska and Balfour Beatty, describing MacAlpine as a “major force” behind the blacklist and Balfour Beatty as a particularly “hard-nosed” user. Balfour Beatty is heavily criticised, with the SAC pointedly remarking:

“…we are sure that [the company] regrets being caught; we were less convinced that management regretted its involvement with TCA.” [28]

The TCA’s database was accessed by construction companies on an annual subscription basis – membership was at the invitation of an existing member – and a further £2.20 was paid for each name checked. The point of contact with TCA was usually through a senior executive in a company’s Human Resources Department who would submit a list of names, to be checked against a card file held by the Association. Over a four-year period, for instance, Skanska vetted 66,000 names of workers to be employed on Ministry of Defence building projects while Balfour Beatty was vetting 15,000 workers a year.

Red, black, blue and green

While the ICO’s flawed investigation seriously undermined attempts to confirm the broader scope of the TCA covert blacklisting service, other lines of inquiry have been more forthcoming. Ian Kerr’s evidence to the SAC described how blacklisted names were given different colours: black (for industrial relations – general); red/orange (mechanical and engineering); green (environmental activists) and blue (everything else). [29] While there is some question as to the veracity of Kerr’s statements, it is worth briefly exploring the scope of TCA’s activities.

Various industrial tribunal claims have resulted from the construction industry’s blacklisting of workers. Two examples will serve here as an illustration of the effects of blacklisting on individual construction workers.

Construction worker, Steve Acheson (58), from Greater Manchester, obtained a copy of his 22-page file following the ICO raid on TCA. Achesons’s trade union activities began in 1996 after the death of a 21-year old colleague at a site on which he was working. This compelled him to ensure that companies for which he worked complied with health and safety legislation. He has won four cases of unfair dismissal at various industrial tribunals. His TCA file began in April 2000 and confirmed that he had been placed on the blacklist because of raising health and safety issues and because of “suspected” trade union membership. The file included his name, address, date of birth, National Insurance number, mobile telephone number and a reference to his union membership. As a result of being blacklisted, Acheson was unemployed “for nine of the last 11 years and in the last five years [he] received only 16 pay packets.” On the few occasions when he secured employment he was swiftly removed from the site. This has had a devastating effect on his family and his wife had to work full time to support him.

Engineer, Dave Smith (47) had a 36-page file him held on him by TCA and he was repeatedly victimised for highlighting safety hazards on sites. The file contains many entries regarding Smith’s role as safety officer for the building workers’ union, Ucatt, while working on building sites controlled by John Mowlem and Schal International (both subsidiaries of Carillion) after he raised safety issues relating to the presence of asbestos and working conditions. In 2009, Smith became the secretary of the Blacklist Support Group. In January 2012, he pursued a claim against Carillion through an employment tribunal. Although Carillion accepted that Smith had been blacklisted, the company successfully argued that because he was not employed directly by them, but through a sub-contractor, Carillion was not legally responsible. Smith told the Guardian newspaper:

“This is about human rights. I have not done anything illegal; I am a member of a trade union. I have worked in an attempt to improve health and safety on building sites and yet it appears my employers, the state, security services and the police have been conspiring against me.” [30]

It should be noted that the majority of those who have sought redress through the courts have failed. [31]

The scope of TCA’s blacklisting has recently been shown to have included Irish construction workers; 370 people on the 3,200-name TCA database have typically Irish names. Irish workers were illegally barred from Ministry of Defence projects and the ICO’s David Clancy has alleged state involvement, saying that some information on TCA’s records “must have been supplied by either MI5 or police.” The Labour MP, John McDonnell, who has spent many years highlighting the blacklisting scandal, called for the truth on how Irish workers were targeted and asked “who in the state authorised or turned a blind eye to this organised victimisation.” To this end he called for an independent public inquiry into blacklisting:

“I am calling for an independent public inquiry into blacklisting because many believe that what we have found out so far about the activities of The Consulting Association is just the tip of an iceberg.” [32]

According to the GMB trade union, the TCA’s blacklist also included 582 workers who were living or working in Scotland. Describing the practice of blacklisting as “a deplorable activity that has ruined livelihoods for decades,” Labour MP Jim McGovern called “on authorities to look into whether it remains an ongoing practice.” [33] The GMB has met with officials from the Scottish government, which is considering preventing companies implicated in the blacklisting scandal from bidding for future contracts, worth billions of pounds. A Scottish government spokesman said: “Officials met union representatives to discuss new guidance to update existing public procurement processes and procedures in light of blacklisting of employees by contractors in the construction industry.” [34]

In January 2013, a House of Commons debate on blacklisting discussed police and security service collusion in the practice, suggesting that at least 200 green activists involved in road building protests were among those under surveillance by TCA. TCA’s Ian Kerr had revealed to the parliamentary committee that construction firms wanted information on green protestors after being “badly hit” by their campaigns in the 1990s. He told the MPs:

“In the mid-90s the industry was literally taken unaware by the people who came along and built treehouses, cut the hydraulic lines on the equipment and put sand in tanks, because at the time it was quite easy to win a contract and put a route through an area.” [35]

He went on to say that the construction industry had organised a meeting to debate green activism: “The targets were [activists at] the M11, Twyford Down, the Manchester second runway and the Bath eastern bypass.” [36]

In a recent Panorama television investigation [37] Ian Kerr’s wife, Mary, who worked as a bookkeeper for TCA, described the vetting that occurred during the building of the London “Dome” as extending to acrobats, dancers and entertainers who were seeking employment.

The legal fight back

An estimate of the extent of TCA’s activities can be gauged by legal documents lodged by Sir Hugh Tomlinson QC, acting on behalf of 80+ alleged victims of the blacklisting organisation. Their legal claim alleges that TCA’s clandestine database monitored the trade union activity of workers in the construction industry, including compiling details on industrial action, political views and affiliation and membership of unions, with entries frequently being made after workers had made complaints about matters concerning health and safety. Addressing health and safety issues was considered by companies to be likely to delay construction and therefore lessen profits for no discernible benefit. The TCA’s files did not only make recommendations on employment, with entries such as “do not employ” and “not recommended”, but even commented on individual’s relationships and wrongly accused others of criminal activities, such as accusing one man of claiming unemployment benefit while working. Victimised workers say that the conspiracy to run the blacklist caused them to suffer “loss and damage” by preventing them from obtaining employment [38].

The action also claims that Sir Robert McAlpine, and in particular Cullum McAlpine, had a central role in the establishment and operation of TCA.

“[Cullum] McAlpine was the founding chairman at the organisation’s inception in 1993. He was intimately involved in the foundation and operation of TCA. He formally offered Mr Kerr the position of director in August 1993. He finalised the written particulars of Mr Kerr’s employment, sending them to members for approval and obtaining legal advice in relation to them. He oversaw the arrangement of life and health insurance for Mr Kerr as part of his remuneration.” [39]

The legal claim also says that once TCA’s database was exposed in 2009 and Kerr was prosecuted, he was warned that if McAlpine’s name was mentioned the company “might encounter serious difficulty in obtaining major construction contracts.” Sir Robert McAlpine Ltd paid Kerr’s winding up costs, legal costs and the fine imposed by the ICO through cheques not paid to him directly. McAlpine was invoiced by Kerr’s daughter for “services rendered” and Callum McAlpine paid the bill. The company denies that these underhand payments “…were in any way linked to his taking responsibility or protecting Sir Robert McAlpine Ltd or any other member of the Consulting Association.” [40]

However, Mike Hughes, in an article for SpinWatch, has warned that the legal complexities of the case and obscurity of the law “means that it will be hard to see that even if this case is successful it will set sufficiently clear precedents to change recruitment practices in general.”

Commenting on the legal cases against Sir Robert McAlpine Ltd, a spokesman said:

“TCA was established by a large group of construction companies. All the member companies contributed to, and accessed information from, the CA from time to time. Directors and representatives of a number of major construction firms chaired CA over the years. These included Mr Cullum McAlpine who was chairman for a period in the 1990s.” [41]

The depth of the company’s state of denial was clear when a spokesman added that it had never operated a “blacklist.”

“We are, and have always been, wholly committed to maintaining good relationships with our workforce and to responsible trade unionism.” [42]


Protests at local and European level

At the local level, members of trade unions such as Unite have been leafleting, petitioning and demonstrating to mobilise public support to prevent local authorities using the companies that blacklisted, and in some cases allegedly continue to blacklist, workers. Unite is calling on local authorities:

“…to desist from using the services of companies proven to have blacklisted workers and in particular those companies, such as Royal Bam and Kier which appear to be continuing to abuse the basic human rights of ordinary working people.” [43]

Hull City Council voted unanimously to remove blacklisting firms from all council contracts at a full council meeting in December 2012. The council also recognised the GMB trade union campaign to win an apology and compensation for those who have been unable to work as a result of being blacklisted. [44] Around a dozen other councils in England, Scotland and Wales are considering moves to exclude blacklisting companies from local government contracts. The Blacklist Support Group has called on other local authorities to follow Hull’s lead:

“…until the blacklisting firms apologise and compensate the workers whose lives they have ruined. They have destroyed careers in order to increase their profits. As profits are the only thing that the blacklisting companies are interested in, perhaps losing publically funded projects will make them own up to their responsibilities.” [45]

The Unite trade union [46] maintains that blacklisting continues to be rife in the UK and that this is evident on the £15 billion publically funded Crossrail project (Europe’s largest railway engineering programme underway in southeast England). The union’s general secretary, Len McCluskey, has called for a national mobilisation against Crossrail consortium Bam Ferrovial Kier (BFK), after alleging that “blacklisting activity is continuing at Crossrail.” [41] The union says that workers’ have been excluded for raising safety issues, an allegation that will be tested at an employment tribunal by electrician, Frank Morris (38), who says that he was dismissed after becoming a union representative and voicing safety concerns.

At the European level, in April 2013 the Unite union led a delegation to Amsterdam to protest outside Royal Bam’s annual general meeting. Bam is the latest major contractor to have its overseas meetings targeted by anti-blacklisting protesters from the UK. Unite is running a campaign against the Crossrail project and its delegation to Holland was protesting at Bam Nuttall’s role in the London scheme. In the same month, the Blacklist Support Group and GMB trade union targeted the Skanska annual shareholders meeting in Stockholm. Unite’s assistant general secretary, Gail Cartmail, who attended the protest in Amsterdam said “Blacklisting ruins lives and we believe it is continuing today on Crossrail.” She continued: “Unite believes that the people of Holland and Bam’s shareholders deserve to know about Bam’s behaviour elsewhere in Europe.” [47]

“We are all Thatcherites now”

Following the death of former Conservative Prime Minister, Margaret Thatcher, on 8 April 2013, the current Conservative Prime Minister David Cameron paid tribute to her, declaring that “We are all Thatcherites now.” Thatcher, who laid waste to vast swathes of working class communities when taking on the miners and other trade unionists during an earlier programme of privatisation that left generations unemployed and unemployable, stands as an appropriate symbol for the blacklisting scandal. Like Thatcher before him, David Cameron has also targeted workers’ rights and imposed neo-liberal austerity measures that take from the poor to subsidise wealthy captains of industry, who continue to get vast bonuses that exceed what the average worker will earn in an entire lifetime.

The blacklisting and removal from employment of those workers who are represented by trade unions, or have the temerity to question health and safety standards, evokes this Thatcherite ethos, but also accurately signifies the role that working class people can expect to play in twenty-first century Britain. It is therefore unsurprising to find that the HSAC’s interim report also expresses grave doubts as to whether the illegal practice of blacklisting has actually ended. The Committee felt obliged to investigate the extent to which the practice continues within the construction industry and further afield, and will report its findings in a forthcoming report. In future sessions, the Committee will also examine the ongoing issues of compensation for victims and penalties for offenders.

However, it is clear that private websites, like HR Blacklist, [48] which describes itself as “an ethical human resources community for employers and employees” that promises to reveal “the truth about employees,” is continuing an old tradition. The company advertises five reasons for using its HR Blacklist:

1. Blacklisting an employee is free

2. Almost 50% of the candidates lie in their CV’s

3. Hiring the wrong person, may cost you money and reputation

4. Fast and easy CV search: find what other employers had to say about the candidate

5. Rate an employee, or check his/her rating

However, Mike Hughes has warned that:

“…the technology of blacklisting is moving offshore and embracing wiki models where the conspiracy becomes more dispersed and tortuous and certainly less actionable.” [49]

Endnotes

[1] House of Commons Scottish Affairs Committee “Blacklisting in Employment: interim report” (The Stationery Office), 16.4.13 link

[2] Information Commissioners Office “The Consulting Association” Press release (undated) See also: Phil Chamberlain “The Construction Industry Blacklist: how the Economic League lived on” Lobster 58, Winter 2009/10, for a detailed account of the raid.

[3] A Health and Safety Executive report published in April 2013 revealed that “nearly a quarter of building sites in London failed to meet minimum health and safety legal standards, BBC News 5.4.13. See link

[4] Daniel Boffey “McAlpine denies high court claim it had major role in ‘blacklist scandal’” The Guardian 12.1.13

[5] European Court of Human Rights “The European Convention on Human Rights” 1950 link

[6] “Blacklisted builders launch mass legal action against Sir Robert McAlpine” The Guardian, 29.7.12 link

[7] Op. cited House of Commons Scottish Affairs Committee 2013.

[8] Parliament “Blacklisting Debate: Opposition Day” 23.1.13. link

[9] Matthew Taylor “MPs call for inquiry into blacklist of green activists” The Guardian, 29.1.13

[10] ibid

[11] See for instance: Mark Hollingsworth and Richard Norton-Taylor, Blacklist: the inside story of political vetting (The Hogarth Press 1988) Mike Hughes “Spies at Work” (1995) online book: link

[12] See for instance the role played by Sir Admiral Reginald ‘Blinker’ Hall a director of Naval Intelligence who advised the government on the establishment of MI6 in 1909

[13] Op. cited, Hughes 1995

[14] Matthew Taylor “MPs call for inquiry into blacklist of green activists” The Guardian, 29.1.13

[15] Op. cited, Hughes 1995

[16] The journal Labour Research still publishes news and information for trade unionists and continues to play an important role in exposing the activities of major construction companies in illegal blacklisting. Website: link

[17] Labour Research “A Subversive Guide to the Economic League” 1969

[18] State Research “The Economic League” Bulletin No. 7, pp. 135-145, 1978

[19] Op. cited Mark Hollingsworth and Richard Norton-Taylor 1988

[20] David Hencke “Left blacklist man joins euro fight” The Guardian, 9.9.00

[21] When the Economic League was wound up two of its former directors formed a similar organisation called CAPRiM. The role of this organisation is enigmatic, but Ian Kerr has said that it was primarily an organisation that put out publications and checked potential employees curriculum vitaes. He also suggested that it was a vehicle to ensure that he and other ex-Economic League employees were able to maintain their standard of living.

[22] Op. cited Scottish Affairs Home Committee 2013

[23] Op. cited Scottish Affairs Home Committee 2013

[24] Op. cited Scottish Affairs Home Committee 2013

[25] The BSG blog can be found on the Hazards website. See link

[26] ibid

[27] link

[28] Op. cited Scottish Affairs Home Committee 2013

[29] Ibid

[30] Daniel Boffey “Blacklisted building workers hope for day in court after ruling” The Guardian, 3.3.12 link

[31] ibid

[32] Irish Post, 9.2.13

[33] The Courier, 5.2.13

[34] Paul Cahalan and Sanchez Manning “Building firms could face bans over blacklisting of workers” Independent 9.6.13.

[35] Op. cited Scottish Affairs Home Committee 2013

[36] Op. cited 7. Parliament “Blacklisting Debate: Opposition Day”, 23.1.13

[37] Panorama “Blacklist Britain” BBC 1, 10.6.13

[38] Daniel Boffey “Blacklisted builders launch mass legal action against Sir Robert McAlpine” Observer 29.7.12. link

[39] Daniel Boffey “McAlpine denies high court claim it had major role in ‘blacklist scandal’” The Guardian 12.1.13 link

[40] Panorama “Blacklist Britain” BBC 1, 10.6.13

[41] Op. cited The Guardian, 12.1.13

[42] Op. cited The Guardian, 12.1.13

[43] Tim Lezzard “Shoppers asked to support blacklisted workers (Union News 11.5.13)

[44] Morning Star, 4.1.13

[45] See Unite webpage:link

[46] Matthew Taylor “Unite calls for national action over Crossrail blacklisting allegations” The Guardian, 10.6.13.

[47] Will Hurst “Blacklisting protesters target Royal Bam” link

[48] HR Blacklist website: link

[49] Mike Hughes “First concerted legal action against blacklist will reveal need for a radical rethink of employment regulations” SpinWatch, 18.1.13

 

 

Secret industry databank in U.K. on militant trade unionists

Six years and still waiting: the legal implications of blacklisting

Blacklisted 2http://thejusticegap.com/2015/02/six-years-still-waiting-legal-implications-blacklisting/

by Dave Smith, The Justice Gap, March 6, 2015

The construction industry blacklist has appeared regularly in the media since it was discovered in 2009 following a raid by the Information Commissioner’s Office (ICO). Over 40 of the UK’s largest contractors held a covert database of trade unionists who had complained about unpaid wages or safety on building sites through an organisation called The Consulting Association.The database was used to check whenever workers applied to work on major projects and resulted in sackings and repeated refusals of employment over a period of decades. All this was meticulously recorded on 3,213 files using secret codes for the companies and the senior directors who oversaw he operation, with invoices sent for usage. You might have thought, that with mountains of documents, the individuals who had suffered would easily find a legal remedy to achieve some kind of justice. If only.

Initially hundreds of blacklisted workers applied for their files from the ICO and were supplied with what appeared to be prima facie evidence of unfair dismissal and various other forms of victimisation and discrimination. In the summer of 2009, there were a flurry of Employment Tribunal claims submitted and by November that year, when a collective case management discussion was held in Manchester, the blacklisted workers and their lawyers were optimistic of their prospects.

 Demo outside parliament, TUC Day of Action on Blacklisting in 2012

That optimism didn’t last very long. Within months, virtually every ET claim had been thrown out without the evidence even being heard in open court. The reason relates to time-limits.

Every ET claim needs to be submitted within three months of the incident taking place. This is a very strict rule and only in exceptional circumstances will the three months be extended (for instance if someone has been hospitalised for the entire period). In the blacklisting cases, the acts of discrimination or unfair dismissals complained about had not taken place three months earlier but sometimes three decades ago.

The claimants argued that deliberate deception by the blacklisting firms meant that it was not ‘reasonably practicable’ for them to claim at the time of the incident. The courts accepted this but the law does not state how long an extension should be granted for.

In every case, the claimants completed their applications within a few weeks of receiving their file and in most cases well within the three months allowed in normal circumstances. But when Judge Brain sitting alone in Manchester heard the cases, he dismissed every single claim based upon the time-limit rule. The written judgements claim that even though he was willing to grant an extension, this should amount to only a few days. The decision as to how long an extension to grant is entirely in the hands of the judge. It was within his power to allow some leniency to ex-construction workers with no legal training who had completed the tribunal forms themselves. But he decided not to and only five cases ever made it to a full hearing.

'Blacklisted' book cover - more www.newint.org/books/politics/blacklisted-secret-war

Of these, three cases supported by the UNITE union were successful and the workers won compensation of a few thousand pounds because of a specific incidence of unfair dismissal or failure to appoint due to union membership. Sometimes the workers had suffered years of unemployment due to the blacklist, yet the compensation equated to no more than a few weeks lost wages.

The remaining two cases both lost because of ‘employee status’. In both cases, Dooley v Balfour Beatty and Smith v Carillion the companies admitted using the Consulting Association database to blacklist the union activists but won the court case because neither worker was directly employed by the main contractor that carried out the blacklisting. Dooley worked for a brickwork sub-contractor and Smith for an employment agency. In UK employment law, legal rights such as redundancy, unfair dismissal and victimisation for raising safety concerns only apply to direct employees. The impact for millions of casualised agency workers or those on zero hours contracts effectively have little or no employment rights – even where they have documentary evidence and when employers admit the victimisation.

Dave Smith (second from right) with legal team from Smith v Carillion test case.  (L-R) Declan Owens, David Renton, Smith, and John Hendy QC   (all acting pro-bono via the Free Representation Unit)

The Smith v Carillion case has been appealed using the Human Rights Act, all the way to the Court of Appeal. The legal argument being that blacklisting is a breach of Article 8 (privacy) and Article 11 (freedom of association) of the European Convention on Human Rights (ECHR). Human rights are supposed to apply to everyone not just a particular category of employee. So either the agency worker should be protected or else UK employment law does not comply with the ECHR, and should therefore be amended. In February 2015, the UK government even intervened in the case against Smith. The reserved judgement is expected within the next few months. There are currently two cases submitted to the European Court of Human Rights in Strasburg, the judgements in these cases are not expected for several years.

The Smith v Carillion test case has taken six years and had nearly 20 days in court, with QCs representing on both sides. The legal fees alone would financially ruin most and are another very real barrier to justice for working people.

The final throw of the legal dice is the ‘group litigation’ currently at the High Court. This is equivalent to a US style class action and is arguing that the Consulting Association was an unlawful conspiracy and claiming damages for loss of earnings and defamation. Around 500 workers are up against all the major blacklisting companies. The legal bills have already exceeded £10million and the trial date is not even confirmed yet but is likely to be in the summer of 2016.

Six years of legal battle and no real end in sight. Many have passed away in the process. Whatever the legal outcome, it will not be real justice.