[IER] Ruined Lives: Blacklisting in the UK Construction Industry

Tue Oct 6 11:04:42 BST 2009

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Ruined Lives: Blacklisting in the UK Construction Industry 

 The following article by Keith Ewing, summarises the main findings of a
report, commissioned from IER by UCATT
<http://www.ucatt.info/content/view/760/30/> . The article was first
reported in the Morning
<http://www.morningstaronline.co.uk/index.php/news/features/Scourge-of-trade
-unionist-blacklisting>  Star on 6th October 2009. Copies of the report are
available to buy from IER <http://www.ier.org.uk/node/419> 

"Like thousands of people up and down the country, Dave Smith is an active
trade unionist. Unknown to him, his name appeared on an unlawful secret
blacklist created by "private investigator" Ian Kerr. 

Through an agency known as the Consulting Association, Kerr kept a file of
personal information and newspaper cuttings, with the details being supplied
in part by a number of well-known construction companies. 

The Consulting Association held information about Smith's date of birth, his
national insurance number, his address and phone number, his car and its
registration number, along with his occupation and two pages of other
information relating to his employment history taken from his own CV. 

There was also detailed information about disputes and other activities in
which Smith had been involved. 

The data ran to 18 pages and spanned a period from 1992 to 2005. It included
details about Smith's political views, about industrial tribunal cases in
which he had been involved and about his work in upholding health and safety
standards in the construction industry. 

It was clear that the blacklister had scoured labour movement and
construction industry publications and used company insiders to compile the
dossier. 

Smith was one of 3,000 people on the Consulting Association's blacklist.
Many of those on the database found themselves unable to find work, even
when the economy was booming. 

They suffered simply because they had stood up for their workmates and
insisted that their employers follow proper health and safety standards. 

Although Kerr has been convicted, no prosecutions have been brought against
any of the companies he fed information to. 

Construction union UCATT has made addressing this scandal a priority and
many workers are now taking legal action against firms that they believe may
have victimised them because of their union activities or because they may
have processed sensitive personal data without their consent. 

While some of these cases could succeed, others are likely to run into
formidable practical problems in proving victimisation or demonstrating that
a loss had been suffered as a result. 

There are major human rights issues here. Blacklisting is a clear breach of
ILO Convention 98 - a fundamental international treaty. And it would almost
certainly be of concern to the European Court of Human Rights, which has now
found its voice in protecting trade union rights. 

It is hard to think of a more flagrant breach of rights than the trade in
information, over a period of 40 years in some cases, about an individual's
status as a trade unionist and any activity on their union's behalf. 

The government has now issued a consultation document with a view to
implementing legislation to stamp out this practice, which is as old as
trade unionism itself. 

But this belated gesture - to implement a power first contained in the
Employment Relations Act 1999 - does not go nearly far enough. Blacklisted
workers might also want to know why their files were shown to the Department
of Business, Innovation and Skills. 

Any regulations introduced by the government must provide a retroactive
compensation scheme for the people on the Consulting Association's
blacklist, funded by a special levy imposed on companies known to have used
the lists. 

The law must clearly lay down that keeping and using blacklists is a
criminal offence. Anyone appearing on a blacklist should be entitled to a
minimum award of compensation without the need to establish loss but with
compensation being increased where loss is established. 

And the banning of blacklists should clearly apply to all activities
associated with trade unionism, including organising and participating in
industrial action, as well as any convictions which arise as a result. There
should be no blacklisting on political grounds. 

If, as is likely, the government produces a fudged consultation response,
workers will need to apply to the European Court of Human Rights, following
the successful example of trade unionists such as David Wilson of the NUJ
and trade unions such as ASLEF, which took on the government over the BNP. 

There should be no argument - being blacklisted is a violation of
internationally protected human rights, running a blacklist should be an
offence and being blacklisted should be enough to establish a right to
compensation". 

Keith Ewing is professor of public law at King's College London and
President of the Institute of Employment Rights. 

If you would like to assist us in our work - join us
<http://www.ier.org.uk/system/files/Subs+Form+08.pdf> .  

Carolyn Jones 

Director

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