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Trade Union Blacklisting

Today is a day of action against blacklisting organised by the Trade Union Congress (TUC). To coincide with today’s day of action the trade Union Ucatt have launched legal proceedings in England against a number of major contractors, making it the third High Court blacklisting claim to be made. In June 2013, the GMB union announced it would lodge claims in the High Court for compensation on behalf of 70 construction workers whose names were discovered on a blacklist and the case is due in the High Court on 29 November 2013. 
Following a raid on 23 February 2009, the Information Commissioner’s Office (ICO) confirmed that The Consulting Association (TCA) would be prosecuted for serious breaches of the Data Protection Act for selling details of workers listed on a blacklist, which it had compiled. Investigators discovered over 3,000 workers on the blacklist and that around 40 construction companies were involved. The ICO said a secret system had been run for over 15 years to enable firms to unlawfully vet job applicants. Unions called on the government to outlaw “blacklisting” practices and in 2010, the Blacklisting Regulations came into effect. 
Last month it was reported that eight of some the biggest firms in the construction industry are to compensate workers who were blacklisted from working on building sites. The companies have apologised for their involvement with an organisation that kept the list but have not admitted liability. The construction firms are asking unions to work with them to establish a compensation scheme offering up to £100,000 to victims with “legitimate” claims. 
It can be argued that the offer to compensate has only materialised because of the threat of legal action. It may be wise to presume that only those workers with a valid legal claim will be considered “legitimate” victims. The relevant law is contained in the Employment Relations Act 1999 (Blacklists) Regulations 2010, which came into force on 2 March 2010. The regulations apply to workers including home workers and self-employed contractors. A blacklist is one which  contains details of persons who are or have been members of trade unions or persons who are taking part or have taken part in the activities of trade unions (for example industrial action, even if not a member). Workers blacklisted for reasons of whistle blowing perhaps about health and safety concerns will only be protected if there is a connection to trade union membership or trade union activities. 
Those who have been blacklisted can take action in the Court of Session in Scotland provided they do so within 5 years of becoming aware they were on a blacklist. Action can also be taken in the Employment Tribunal. The time limit is only 3 months but may be extended if it is just and equitable to do so (reg 7(2). A claim should be accepted under the Regulations provided the worker acts reasonably promptly once he has uncovered the necessary evidence. The evidence is likely to be confirmation from the ICO that a person was blacklisted. 
Those who believe they have been blacklisted should contact the ICO for confirmation. If you wish to check whether information about you is held on the database you can call the ICO Helpline on 0303 123 1113 between 9am and 5pm, Monday to Friday.
More information is available on the ICO website http://www.ico.org.uk/news/current_topics/consulting_association. Once confirmed you should immediately obtain legal advice regarding the submission of a claim to an Employment Tribunal within 3 months. It is possible that the voluntary compensation scheme will not materialise. If it does, you may only be considered a “legitimate” claimant if you have lodged a claim in the Employment Tribunal or the Court beforehand. 
For further information contact Sarah Shiels, Senior Employment Solicitor at Balfour+ Manson LLP, on 0131 200 1209 or email sarah.shiels@balfour-manson.co.uk