Blacklisting is rearing its ugly head again in the UK. The Scottish Affairs Committee published its interim report in April on the, supposedly historical, practice of blacklisting in the construction industry. Blacklisting in this context involved placing construction workers on a list because they were part of a union, undertook union activities or raised health and safety concerns. This list was then circulated to potential employers, so they knew which workers to avoid employing. In a number of cases, the information provided was wholly false. What makes blacklisting significant is not only that it has taken such a long time for victims to access any kind of justice, but that so many questions remain unanswered and that, despite legislative and policy efforts to prevent it, the practice still seems to be a feature of life in the construction industry. For example, allegations have surfaced in Scotland that 28 workers were recently sacked for trade union activity and raising basic health and safety concerns by BFK, a conglomerate of construction companies holding substantial public sector contracts that are believe to include one with Transport Scotland, which builds Scotland’s road network.
The Scottish Affairs Committee inquiry built on an original investigation undertaken by the Information Commissioner’s Office (ICO), the agency tasked with dealing with breaches of the Data Protection Act. This investigation found an extensive surveillance operation run by the Consulting Association, which collated files on thousands of construction workers and sold this information to construction companies. Workers were then rejected from jobs on the basis of this information. This was an organised practice involving some of the biggest names in British construction, such as Balfour Beatty. Many blacklisted workers were unable to find any work in the construction industry, leading to cases of severe economic hardship; hence the Scottish Affairs Committee’s examination of the potential for compensation. Their report found:
most of the companies involved are genuine in their regret at having been caught—however, we are not convinced that the process would have been halted had it not been detected. […]We note that many of the entries on blacklisting files are little more than gossip, and that whole groups of employees were blacklisted en masse.
The ICO continues reach out to blacklisted workers, who may be unaware that they were on the blacklist. To date, “3,652 individuals have contacted the [relevant] helpline” provided by the ICO and “copies of personal data held in the files have been provided to 385 individuals”. In other words, more workers now have a copy of the information collated by the Consulting Association and are aware that the challenges they faced in accessing employment may be rooted in this information. This is also matched by proactive efforts by the ICO to trace affected workers.
Steve Rotherham MP (Lab) tabled an Early Day Motion (EDM) in October 2012, which advocated that companies guilty of blacklisting should be banned for bidding for government contracts. The Government’s lacklustre response to a question found:
Public sector procurers are required to comply with principles of openness, transparency and non-discrimination, including from EU treaties, when awarding public contracts. The Government expects companies not to break either data protection law, trade union law or the Blacklists Regulations when planning or undertaking work for the public sector.
Such a response hardly shouts of robust deterrence and is not indicative of proactive enforcement.
In a similar manner, a question as to the steps taken by the Secretary of State to ensure that infrastructure projects for his Department were not delivered by firms involved in the blacklisting of construction workers, evoked the response: “We would expect all companies regardless of whether they are working for Government or not to abide by the law including compliance with the Employment Relations Act 1999 (Blacklists) Regulations 2010.” The Secretary of State for Education, when asked the same question, appeared to take blacklisting more seriously: “Following the publication of the [Scottish Affairs Committee] Interim Report, we will seek confirmation from all who bid for work directly procured by the Department that they do not carry out such practices.” The diversity in responses perhaps signals a lack of joined-up approach to tackling blacklisting, or more cynically, a better PR department.
The Scottish Affairs Committee has made it clear that its investigation into blacklisting will continue. Steve Rotherham’s EDM also notes that a “recent court case revealed that the police and security services may have been complicit in the Consulting Association’s activities and that blacklist records were kept on academics and journalists”, though it is not clear for what purpose. Zac Goldsmith MP asked a Parliamentary Question in May about allegations that blacklisting also targeted environmentalists. Such allegations indicate that blacklisting may stretch beyond those involved in the building trade. Further, according to media reports, the Metropolitan Police have launched an investigation, led by the Directorate of Professional Standards and supervised by the Independent Police Complaints Commission (IPCC), into the provision of information on workers to the Consulting Association. The fact that this investigation is primarily internal is worrying. On-going revelations as to the conduct of the Met Police combined with the already shaky reputation of the IPCC has undermined broader public support for these institutions and supports the argument for this investigation to be made more independent, especially considering the sensitive nature of the allegation.
BBC Panorama highlighted the practice of blacklisting in a documentary broadcast in June. Serious allegations were made that blacklisting was being used by those involved in the Crossrail project, currently London’s most significant infrastructure development project. Secondly, and often missing from the union-dominated narrative of blacklisting, was the assertion that union officials colluded with the Consulting Association and provided information on union members. This is not a new allegation, indeed Construction News (an industry publication) investigated in early 2012 and reported that Unite had carried out an inquiry into this alleged complicity but not come up with any conclusive evidence, nor did their allegation gain much purchase outside the industry. The resurfaced allegation illustrates the need for unions to both hold new inquiries into union collusion and make such findings public.
The BBC documentary prompted Jim McGovern MP to ask the Prime Minister, David Cameron, during Prime Ministers Questions on 12 June, “Can I ask the PM to call for an urgent inquiry into this practice which I refer to not as McCarthysim but as McAlpinism?” McAlpine being one of the UK’s largest construction firms. The Prime Minister claimed that his office was taking action against the practice of blacklisting but declined to go into detail. Perhaps he was referring to the amendments to the Employment Relations Act (1999) Regulations (2010) (brought in by the previous Labour government). These Regulations prohibit blacklisting. Individuals can make a complaint to the Employment Tribunal on the basis that: they have been refused employment, have been subjected to a detriment or unfairly dismissed for a reason connected to a blacklist. However, if the allegations that blacklisting continues prove correct then attention should be focused on why these regulations have failed to adequately address this problem.
However, considering the relative lack of interest by Government to take this issue more seriously, the absence of robust enforcement of the current measures designed to inhibit blacklisting, and now the damaging allegations that union officials as well as police were involved in the provision of information, this seems to make only a limited difference to the prevention of this practice. The result is that a number of workers continue to be discriminated and against and inhibited from accessing employment on the basis of incorrect and illegally obtained information over which they have little control.