The Government’s anti-blacklisting Regulations came into force on 2 March, but will they stop blacklisting?
In March 2009, the Information Commissioner’s Office (ICO) uncovered a database containing the details of 3,213 construction workers, which was used by over 40 construction companies to vet individuals for employment. The database effectively acted as a blacklist of the individuals who appeared on it.
The ensuing public outcry was understandable, particularly when it became apparent that blacklisting of this type was not in itself unlawful under English law. Ian Kerr, who maintained the database, was eventually convicted of offences under the Data Protection Act 1998. He was fined £5,000, a sentence that many considered unduly lenient. At the same time, the ICO’s action against the construction companies who paid to use the blacklist disappointed trades unions and led to calls for further action.
The Government’s solution
The Government has had the power to outlaw blacklisting since the Employment Relations Act 1999 came into force. However, until last year, the Government believed that blacklisting was so rare that specific legislation was unnecessary. The Employment Relations Act 1999 (Blacklists) Regulations 2010 seek to remedy the situation.
- Make it unlawful for organisations to refuse employment or sack individuals as a result of appearing on a blacklist.
- Make it unlawful for employment agencies to refuse to provide a service on the basis of an individual appearing on a blacklist.
- Enable individuals or unions to pursue compensation or solicit action against those who compile, distribute or use blacklists.
Employment Relations Minister, Lord Young, has hailed the new Regulations, saying:
“I am confident that this new piece of legislation will bring to an end the disreputable practice of blacklisting once and for all.”
However, Lord Young’s confidence is not universally shared. UCATT has described the Regulations as “so weak that they will not prevent blacklisting from occurring.” UCATT alleges that the Regulations are “deficient” because:
- They do not make blacklisting a specific criminal offence.
- They only prevent workers from being blacklisted for undertaking “trade union activities”, which UCATT thinks is defined too narrowly. For example, UCATT fears that a worker could still be blacklisted for taking unofficial industrial action.
- They fail to grant an automatic right to compensation for any worker who discovers that he or she has been blacklisted.
- If a blacklist is discovered, workers will not be automatically told that they had been blacklisted.
One additional concern is that the punishments introduced by the Regulations may be imposed too leniently, so that they fail to deter blacklisting in future. That fear is based on the lenient penalty imposed on Ian Kerr and the action taken against his clients.
Time will tell
Perhaps the only positive aspect of the scandal is its role in raising awareness of blacklisting among employers and employees. It has also raised awareness among those organisations that regularly engage construction companies, some of whom may be reluctant to award projects to companies that have a reputation for this type of activity.
It remains to be seen whether the Regulations will stamp out blacklisting, but the publicity surrounding the issue may in itself have done something to deter future blacklisters.