Banishing the blacklisters
A case brought by employees who claim they were blacklisted could bring similar actions across the industry, says Susanna Gilmartin
In March 2009 the Information Commissioner’s Office confirmed the operation of a blacklist containing the names of more than 3,200 construction workers. A public outcry ensued and in its wake a new law was put in place.
The Employment Relations Act 1999 (Blacklists) Regulations 2010 make it illegal for organisations to compile, supply or use blacklists and prevents the use of blacklists in deciding whether to employ or dismiss individuals. The Regulations give individuals the right to bring a claim in the Employment Tribunal.
Although there have been very few successful Employment Tribunal claims, because people often lodge claims out of time (a claim must be issued within three months of the date of the relevant conduct), greater awareness of rights and how to bring a claim is likely to result in more actions. Apart from the Tribunal route victims of blacklisting can use other legislation to take their case to the court.
At the end of July 2012, 86 construction workers launched an action in the High Court against Sir Robert McAlpine for conspiring with other firms, among other things, to keep them out of work. The claim is valued at £17m, but it is thought this could increase to as much as £600m. Sir Hugh Tomlinson, the QC who represented the victims of the phone hacking scandal, is acting for the workers. The exposure this claim will bring to the issue of blacklisting is likely to encourage more people to join the action.
Before this High Court action, perhaps the most newsworthy case involved Dave Smith, who brought a claim against Carillion in the Employment Tribunal under the Regulations. During the course of his claim it transpired there was a mass of information on him held by the Consulting Association, an organisation which provided information about individuals working in the industry to construction firms.
Although he was unsuccessful because he was an agency worker and as such did not have the legal standing to bring a claim, the tribunal judge said Smith had suffered an injustice. Smith is now one of the individuals pursuing his claims via the High Court action.
What companies need to be aware of is the following:
- Any company caught using a blacklist may face action in the courts and damages may be awarded for injury to feelings with no upper limit on the amount that can be awarded;
- It is illegal for any company or employment agency to refuse to employ someone for any reason that relates to a blacklist. The Regulations are drafted to cover a wide range of possible situations, including where an offer of employment is made and then subsequently withdrawn;
- The Regulations give employees who are refused employment, suffer detriment or are dismissed due to blacklisting, the right to bring claims in the Employment Tribunal;
- Unions can also bring claims on behalf of an employee;
The Employment Tribunal has the power to award employees compensation of up to £72,300.
The cumulative effect if a large number of employees bring claims could therefore be substantial in terms of cost as well as significant damage to reputation.
The Regulations up to now have been dismissed by many as being too lenient in terms of punishing offending companies, demonstrated by the fact that they do not make blacklisting a specific criminal offence. However, with the publicity surrounding the High Court action, individuals are likely to be on the look out for signs of blacklisting.
Susanna Gilmartin is a partner in the employment team at Thomson Snell & Passmore