Mick Holder of the Hazards Campaign has looked through the UK government’s proposed blacklisting law. It will be an improvement on nothing, he says, but has gaping holes that will be exploited by blacklisters.
The government’s main proposals are:
- to make it unlawful for organisations to refuse employment or sack individuals as a result of appearing on a blacklist;
- to make it unlawful for employment agencies to refuse to provide a service on the basis of appearing on a blacklist; and
- to enable individuals or unions to pursue compensation or solicit action against those who compile, distribute or use blacklists.
Holder has summarised what he believes are the key omissions and flaws in the proposed legislation.
It’s only unions The proposed regulations will only cover lists of union members and therefore does not cover all circumstances were blacklisting may occur. Some examples not covered would be:
- Non-union members can be blacklisted.
- Individuals can be blacklisted without the existence of a list.
- A group of workers who protested, say at not being paid or over health and safety, who are not union members could be blacklisted. Common when “knocked” in construction.
- Agency workers who refuse to sign the opt-out to the working time regs reportedly don’t get work. The agency keeps these workers on a database which can be easily turned into a list and sold on.
It’s about “lists” – but blacklisting can occur in other ways. Photographs of so called “troublemakers” are circulated between sites. This is not a list but still results in blacklisting.
It doesn’t take into account current employment practices It does not look at different ways main and sub-contractors or agencies can blacklist or use blacklisting services.
No enforcement, no prosecutions, no fines There are no plans to have stronger enforcement with these proposals – oversight will fall on the Information Commissioner’s Office. They propose enabling civil claims for compensation at either an Employment Tribunal or Civil Court. There will be no fine against a company, say as in a health and safety case now where a fine and compensation is possible. There will be no option of jail. The government think this will be enough to deter blacklisters and those who would use their services.
How the hell do you prove you were blacklisted? Winning any case at an ET is hard enough now anyway but proving you have been blacklisted without evidence of a list or provable circumstances will be doubly so. The most common evidence would be lack of employment but that would not prove the case here. Full evidence would only likely be available if the authorities had discovered and exposed the activity, or the press.
Conclusion “I think the proposed regs would help union members somewhat but they fall down on investigation, enforcement and sanctions,” says Holder. “The proposals are totally inadequate for non-union members and individuals. The proposals focus on “lists” and “unions” and I think they need to cover all potential blacklisting circumstances and reflect current disconnected, casualised employment practices.”
“There must be a stronger enforcement role. The state must be enabled to prosecute, fine and jail for blacklisting.
“There needs to be a debate about the best method of gaining compensation as the proposals don’t look as though that will be easy and the option of a straightforward solicitor suing for damages scenario hasn’t been debated here.”