August 2009

About Thompsons

Thompsons is the most experienced trade union, employment rights and personal injury law firm with offices across the UK. On employment and industrial relations issues it acts only for trade unions and their members. Thompsons represents the majority of UK trade unions and advises on the full range of employment rights issues through its specialist Employment Rights Unit.

Thompsons responded to the 2003 consultation on the Employment Relations Act Review that the Regulations on Blacklisting should be brought into force immediately.

We warned against waiting until there was evidence of employers using such lists as it would then be too late. The damage would have been done to the workers affected and there would be no sanction for acts committed before the regulations came into force. This view has been borne out by the recent and high profile case of The Consulting Association. However, we have seen numerous other examples in the intervening years of trade unionists being blacklisted, though the majority of these could not be pursued under Section 137 TULRCA and would still be difficult to pursue under the proposed Regulations.

In considering the draft Regulations, it is essential to have in mind the fundamental nature of the international rights and freedoms which are infringed by the operation of blacklists-under Conventions 87 and 98 of the International Labour Organisation, Article 11 of the European Convention on Human Rights and numerous other international treaties and instruments. Those treaties and instruments require the government to implement adequate measures to prevent the use of blacklists, and to provide adequate compensation for the victims of abuse. This is not a matter of domestic government benevolence. It is a matter of the protection of fundamental human rights and freedoms.

Against that background, we are very firmly of the view that the Regulations must comprehensively provide for:

• the prohibition of any practice involving or related to the compilation, use, sale, supply, maintenance or storage of a blacklist;

• a system of effective complaint in respect of each potential category of abuse from the supply of information which may be used to compile a blacklist, to the ultimate use of a blacklist by an employer;

• time limits for claims which do not make it excessively difficult in practice for Claimants to exercise their rights;

• appropriate criminal sanctions, as envisaged by Section 3 ERA 1999;

• the designation of an appropriate enforcement authority, fully equipped with the necessary powers and resources;

• effective rights of complaint by trade unions; and

• effective remedies, both financial and otherwise, to include minimum awards in successful cases.

Response to the consultation questions

Q1 We propose that, in light of the activities undertaken by the Consulting Association, suitably drafted regulations under Section 3 of the Employment Relations Act 1999 should now be implemented. Do you agree with this approach?

Yes. As evidence has come to light that blacklisting practices are operating, it is important to make clear that blacklisting of trade unionists is unacceptable. This is so even if other legislative provisions provide redress in some circumstances.

Q2 Do you have any other evidence of trade union blacklisting?

Yes. We have been instructed in 14 potential or actual claims, principally in the construction industry, and arising out of the activities of the Consulting Association.

Q3 Do the regulations adequately cover all the possible ways, including use of the Internet and other electronic media, whereby blacklisting could be undertaken? If not, how could they be improved?

Yes, though see comments at Q5 which apply.

Q4 Do the regulations adequately deal with blacklists maintained and hosted abroad? If not, how should they be revised?


Q5 Do you support the way the regulations clarify the meaning of a prohibited list? If not, how should a prohibited list be defined?

In our view, the regulations do not adequately clarify the meaning of a prohibited list for two main reasons:

1. As “prohibited list” is currently defined, there is a good chance that a “list of one” would not be caught by the regulations because the term “list” implies there must be more than one name on it. (see OED definition “A catalogue or roll of names, figures, words or the like.”)

The definition also relates to the list containing details of trade union members, or persons (our emphasis) implying that it is necessary to have more than one name on a blacklist in order for the provisions to be effective.

It is of course possible that a list may only have one person on it at a particular time. Alternatively, it is also possible that those seeking to contravene the law might keep or use a number of different documents containing one name each. While such action would probably be caught by s.137 TULRA, it should also be the intention that such documents and/or activity are caught by the present Regulations.

There should be no reason that more than one person be potentially discriminated against in order for one individual to enforce the law. Without clarification, individuals or unions might be caught up in wasteful litigation clarifying whether one name is capable of constituting a list. It would be simple for the definitions section to provide, for the avoidance of doubt, that one name is capable of constituting a prohibited list where the other requirements are met.

2. We do not agree that it is straightforward that a list whose purpose changed from legitimate to blacklisting will necessarily be caught by the current definition; nor that amending or maintaining such a list would be interpreted at law as “compiling” a list. We disagree with the proposition that blacklisters, once they start using a previously lawful list, will almost certainly compile a new list. Illegitimate use of a list which was originally compiled lawfully should be expressly prohibited.

The difficulty is presumably that the enabling legislation refers to a prohibited list as one which “is compiled with a view to being used...for the purposes of discrimination.” The government should consider amending the enabling legislation to make clear that a list which is kept or maintained for the purpose of discrimination will be unlawful albeit that it was not compiled for that purpose.

Or it should clarify in the regulations that “compiling” is intended to encompass keeping or maintaining such a list. This could be compared with the clarification of the term “use” in draft Regulation 2(1)

There is also a drafting issue in relation to “activities of trade unions”. Paragraph 2.19 of the consultation document explains that official industrial action will qualify because the phrase “at an appropriate time”, used in other legislation, is not included in the draft Regulations. However, we believe that the draft Regulations should expressly state that all industrial action is included within the scope of “trade union activities”. Permitting the compilation and use of blacklists on any grounds associated with any type of industrial action, whether official or unofficial, would place the government in breach of its international obligations under ILO Conventions 87 and 98 and Article 11 of the European Convention on Human Rights.

Q6 Do you support the drafting of the exemptions and should others be created? Where applicable, please explain why you consider the drafting to be defective.

Subject to two reservations, we support the drafting of the exemptions.

First, we think that there should be a comprehensive exemption for trade unions. The government puts forward no evidential justification for its hypothetical scenario of a maverick trade union compiling or using blacklists.

Secondly, we think that there is an issue with the drafting of Regulation 4(3). A person (say, a journalist) can not use a list at all unless every person whose details appear on the list consents. We think that that is probably unrealistic. Would it not be better to provide that, in the circumstances of Regulation 4(3), no information in relation to a person whose details appear on the list shall be published without their individual consent?

Q7 Do you support the Government’s view that enforcement should take place via the civil law? If not, what approach would you favour?

We do not agree that it should take place via civil law alone. The enabling legislation envisages that blacklisting is a serious enough offence that criminal sanctions are justified in respect of it. Blacklisting is different to other forms of discrimination, because it is by definition, planned, covert and systematic. It is therefore more serious and it would send the wrong message to potential lawbreakers to set penalties which are less serious than that envisaged by the enabling legislation.

Further, it is not sufficient to say that criminal sanctions under the Data Protection Act would cover any offences. As the Information Commissioner, Christopher Graham, has recently commented in relation to the criminal proceedings against Mr Kerr, he only has the power to prosecute in relation to a failure to disclose the existence of a blacklist. He has no powers under the Data Protection Act to prosecute a complier for other reasons, nor has he the power to prosecute users of a blacklist. The power contained in Section 3(3)(f) and (g) ERA 1999 is extensive. The government should use it fully. We also argue that the intent behind blacklisting is more serious than a mere breach of privacy and that the two offences should not be conflated just because it is convenient to do so.

We do also think that the government should establish an investigatory role for a designated public authority. The government demonstrated its commitment to the enforcement of the National Minimum Wage through the adoption of appropriate investigative and enforcement powers. It should do something similar for blacklisting.

The appropriate agency could either be the Information Commissioner, equipped with the necessary additional powers, or BIS, using the analogy of its investigative powers in relation to the Conduct of Employment Agencies and Employment Businesses Regulations 2003.

At the very least, the government should establish a mechanism for the referral of any matter arising out of Employment Tribunal or civil proceedings which discloses the likely existence or use of a blacklist to a designated enforcement authority which can then be tasked with actually enforcing the discontinuance of the list. An order compelling the discontinuance of the list could only be obtained from a court, and, if the government is serious about its desire to outlaw blacklists, that task should fall to an enforcement agency and not the individual.

The Regulations should provide that, if a judgment of an Employment Tribunal in relation to a claim brought under the Regulations discloses the likely existence of blacklist, then details should be sent to the relevant enforcement authority. The decision as to whether to send details to the relevant enforcement authority should otherwise (for example where the claim is compromised on settlement) be in the Tribunal’s discretion.

Given the seriousness with which the government says it views the use of blacklists, the compromise of a claim (or other circumstances) should not be allowed to prohibit the disclosure of a blacklist and details in relation to it to any relevant enforcement authority. In theory, it would be all too likely that a Respondent in an Employment Tribunal claim would require, as a term of settlement, the non-disclosure of details relating to the list. We consider that it would therefore be appropriate to include a provision similar to Section 43J of the Employment Rights Act 1996, which provides that any term in an agreement (including a compromise or settlement agreement) is void in so far as it would preclude a worker from making a protected disclosure.

We are also concerned to ensure that whatever enforcement authority is to be used has sufficient resources to be able to undertake the necessary investigations and enforcement action.

Q8 Do you agree with the approach taken by the regulations regarding the burden of proof? If not, what approach would you favour?

Yes. The analogous approach to that taken in equal opportunities legislation is welcome as the same issues tend to arise.

Q9 Do you agree with the approach taken by the regulations regarding the time limits for making applications to the employment tribunal? If not, what approach would you favour?

We do not agree with the approach. Blacklisting is by its nature covert and concealed. Where such concealment has occurred, a time limit of three months from the act in question is more or less meaningless, given that an individual is likely only to become aware of the possibility that they have been blacklisted after having been turned down for a number of jobs.

In any case, it will usually only be known about after some other form of evidence comes to light, such as through a whistleblower. Tribunals are known to interpret the “not reasonably practicable” provisions very narrowly and it would not be appropriate for complainants to have to rely on this exception. There should instead be a limitation date running from date of knowledge or constructive knowledge in a concealment case.

We suggest that the legislation reflect the drafting of s.2ZA of the Equal Pay Act to:

• define a concealment case in similar terms as being a case where an employer or other person has deliberately concealed any fact which is relevant to the contravention to which the proceedings relate; and, without knowledge of which, the complainant could not reasonably have been expected to institute the proceedings; and
• to set a limitation period for such a case as being 3 months from the date on which the complainant discovered the qualifying fact(s) in questions or could, with reasonable diligence, have discovered it.

In a case which is not a concealment case, the extension test should otherwise be where it is “just and equitable” rather than “not reasonably practicable”; as this is essentially a discrimination law issue it should reflect other discrimination law. The consideration of prejudice to the parties will be an important consideration in these claims, and this fits more easily with the “just and equitable” exercise of discretion rather than the “not reasonably practicable” test.

Q10 Do you agree with the approach taken by regulations regarding remedies? If not, what approach would you favour?

We do not agree with the approach. It is inappropriate to put a limit on compensation for any blacklisting claims. Blacklisting is more pernicious than other forms of unlawful treatment at work, because where a blacklist is used in an industry (as with the TCA example), a person might make substantial efforts to mitigate loss and still essentially lose their entire livelihood for a long period; and they may in some cases need to leave an industry entirely. Further, as we explain below, we believe that there should be a minimum amount of an award for an infringement of the Regulations.

The contributory fault provisions should be deleted in their entirety. Blacklisting is a discrimination offence and is in contravention of the human right of freedom of association. It is offensive and inappropriate to imply that a person might by their lawful actions bring unlawful discrimination on themselves and that they should be penalised for this. Otherwise, contributory fault should not be an issue because the law is not intended to protect unofficial action. The government would be heavily criticised were it to introduce a contributory fault provision in race, sex, or other discrimination law – there is no difference in principle and no reason at all why they should do so here.

There should also be a retroactive compensation fund. Because the United Kingdom did not have in place adequate measures to prevent the activities of those such as TCA, it is likely to have infringed the international treaties and instruments referred to. It is therefore, in theory, liable to pay damages to those who have suffered resulting loss.

There is a useful precedent in the compensation scheme established under the Employment Act 1980. That provided for payment of compensation to individuals who had been refused employment because they were not members of trade unions at workplaces where a closed shop agreement operated. The government could compel employers found to have participated in the activities of TCA to pay a levy to such a compensation fund.

Q11 Do you have any other views on the way the regulations have been drafted? Please submit any drafting suggestions if you have them.

We do have suggestions.

1. We think that there is an issue in relation to the prohibition on “compiling” or “using” a blacklist. Simply “maintaining” or “storing” a blacklist should also be prohibited. We believe that such an extended definition is within the scope of Section 3 of the ERA 1999.

2. We think that there is another issue in relation to the provision or supply of information to the compiler of a blacklist. The Regulations should specifically provide that it is unlawful for any person (A) to provide information to another person (B) where A has, or ought to have, a reasonable suspicion that such information may be used in connection with a prohibited list. The Regulations should also specify of a cause of actions for a Claimants in relation to information supplied, and define a remedy.

3. We think that there is a further issue in relation to the definition of “use”. We can see why the government has expanded the definition of “use” to cover indirect use via a single intermediary, as in the circumstances of TCA. However, we are not convinced that the draft Regulations adequately cater for a more complex system of multiple intermediaries. The end supplier of information in relation to an individual whose details appear on a blacklist may be able to say that they are not using information “contained” in the list. We suggest that the words “contained in” in the definition of “use” in draft Regulation 2(1) should be amended to “derived from”.

4. There is a major omission in the absence of a right to complain, to the Employment Tribunal or otherwise, in relation to the compilation of a blacklist (and the supply of information in relation to a black-list). Regulation 3 makes it unlawful to compile a blacklist, but there is no free-standing right to complain to an Employment Tribunal, or otherwise, over the simple fact of a Claimant having their personal details included in any list compiled. This omission should be rectified.

5. There is a problem posed by not defining the term “employment” for the purpose of draft Regulation 5(2). Despite the clarificatory words “of any description”, “employment” seems to be intended to refer to employment under a contract of employment. If that is right, then the effect is to replicate a defect in Section 137 TULRCA. Section 137 apparently does not prohibit a putative employer from refusing to enter into a contract to perform work personally which is not a contract of employment on grounds of trade union membership (see the definition of “employment” in Section 143(1)). This means that it is not apparently unlawful, under Section 137, to refuse to engage a worker under a contract to perform work which is not a contract of employment. Similarly, in draft Regulation 5(2), it is not apparently unlawful to refuse to engage a worker under a contract other than a contract of employment where the employer either contravenes Regulation 3 or relies on information received from another who contravenes Regulation 3. This hole should be filled.

6. In fact, the lack of definition of “employment” and related expressions causes confusion in other Regulations-see for example, draft Regulation 9(1).

7. Draft Regulation 5(2)(d) prohibits the employer making an offer which no reasonable employer which wished to fill the post would make and which is not accepted where the offer is founded upon a contravention of Regulation 3. We believe that the appropriate comparison should instead be with an offer, actual or hypothetical, that the employer would make to an individual in relation to whom it was not relying on reasons which contravened Regulation 3.

8. Draft Regulation 6(2)(c ), in the context of Employment Agencies, requires a comparison between the services offered to P arising out of a contravention of Regulation 3, and the service provided to “others”. The comparison should be to the service provided to “others to whom the reason in Regulation 6(1) does not apply”.

9. A claim should be able to be made by an individual or union against a person or respondent who is in possession of a prohibited list even if they are not using it at that time. This is within the power of the enabling legislation and may provide a more useful form of redress for complainants and importantly, deterrents for those who might be tempted to engage in blacklisting activity.

10. There should be a minimum punitive award of compensation, analogous to the minimum basic award payments in cases such as dismissal on grounds of trade union membership and the award provided for in Section 145E of TULRCA in relation to breaches of Sections 145A and 145B of TULRCA.. This should apply to all claims brought by individuals under the Regulations under Regulation 5,6,9,and 10.

11. There is a typographical error in draft Regulation 12(1). The word “or” should be inserted after “R or E” in the second line.

12. Regulation 9 provides a right of complaint by a person who suffers a detriment. The Regulations should specifically provide that the fact of a Claimant’s details appearing on a blacklist is itself, and without more, a detriment. That is consistent with the government’s stated objection in principle to the practice of using blacklists, and would overcome the difficulty of Claimants, once they are aware that their details have been included on a blacklist, having to prove that such information led to a further detriment being suffered.

13. Regulation 15 enables a Claimant to bring civil proceedings where she or he has suffered or may suffer loss. We suggest that there should be no requirement for actual or apprehended loss, particularly in circumstances where relief may include an award of injury to feelings and/or interlocutory relief.

14. We have already explained why we believe that the Regulations should contain a provision analogous to Section 43J of the Employment Rights Act 1996 in the context of protected disclosures. The Regulations should expressly provide that a Claimant or their trade union may pass any identified black-list to the relevant enforcement authority.

15. The statement in paragraph 2.23 of the consultation document that “unions can in certain circumstances themselves take enforcement action” should be replicated in the Regulations themselves. The Regulations should make use of the power contained in Section 3(3)(d) ERA 1999 for trade unions to be able to bring representative proceedings in their own name, both in the Employment Tribunal and in the courts.
Regulation 15 should expressly provide that trade unions, in their own name, should be able to bring civil proceedings on behalf of their members. What makes blacklisting so objectionable is the publication of an association between an individual and trade union membership or activities.

Without expressly providing for the union to be able to bring enforcement proceedings in its own name, the draft Regulations arguably perpetuate what is objectionable because the individual has to put their own name to the proceedings. As the consultation acknowledges, an order compelling the closure of a blacklist can not be obtained in the Employment Tribunal. It should be open to trade unions to obtain such orders, if necessary, in the appropriate court.

16. A trade union may not be able to show loss or apprehended loss for itself as an organisation, but should still be able to bring proceedings where its members have been the victims of an act made unlawful under the Regulations.

17. The Regulations should also provide that, where proceedings in an Employment Tribunal reveal the compilation or use of a blacklist, that list should be sent to any trade unions identified in the lists and that the cost of such distribution should be borne by the Respondent(s).

18. Where the compilation of a blacklist has been found to have occurred, and to reflect the unacceptable nature of compiling blacklists, every person whose name appears on the blacklist should become entitled to a compensation payment, regardless of whether they initiated the proceedings which led to the discovery of the blacklist. The mechanism would be analogous to a protective award payment under collective redundancies legislation, or a payment for a failure to inform and consult under TUPE.

19. We note the willingness to import certain principles used in discrimination law, which is welcome. Because of the difficulty in gathering evidence for such a claim, and because of the desirability of having the potential respondent’s explanation prior to the issue of proceedings, it is suggested that there should be a questions procedure analogous to those used in discrimination law whereby the tribunal can infer discrimination from lack of response or an evasive response.

20. There appear to be no consequential amendment to provide that the dispute resolution regime under the Employment Act 2008 applies to any of the blacklisting offences. For the detriment provisions relating to employees, it is appropriate that the Code of Practice should apply to mirror the application of the Code to detriment claims under s.146.

21. The Regulations should give the tribunal or court the power to make two or more respondents jointly and severally liable if appropriate. Say for example that a person (a small consulting firm) supplies a list to an employer (a large construction company). The employer uses the list and denies employment to an individual. Both respondents could be separately held liable.

It would not be surprising that if an award were made against an individual or small consulting firm, the Respondent may not be able to meet any obligations and might put itself into administration or otherwise be able to evade payment. An innocent claimant should not be penalised in this situation and should be able to recover the full amount from the solvent respondent.

Likewise, the intent of the Regulations should be seen as punitive. It is arguable that the facility for more than one Respondent to be joined to an Employment Tribunal claim, or other proceedings, could have the effect of reducing the amount of an award that any individual Respondent would have to pay. The Regulations should provide that the joinder of additional Respondents should not have the effect of reducing any award which a single Respondent would otherwise have to pay in the absence of any co-Respondents.