All fired up
Hazards 107, July-September 2009
Dave Smith believes construction sites should be safe. He’s been fired several times and has faced years of hardship for saying so. Dave is one of the 3,213 construction workers the Information Commissioner disclosed in March 2009 were listed on an illegal blacklisting database (Hazards 106).
He knows he was listed for safety reasons. That’s made crystal clear in the 36-page dossier bearing his name seized by the Information Commissioner in a February 2009 raid on blacklisting outfit The Consulting Association.
“Everything in my file relates to safety - page after page of concerns about asbestos, near fatal accidents, god awful toilet facilities,” Dave told Hazards. “If I discussed it with a site agent, it ended up in my file. Even my UCATT safety reps’ credentials were on the file.” Raise safety concerns and “you were sacked and then hounded out of the industry,” he said.
This wasn’t a minor inconvenience, it was a fast track to poverty. “My kids were on milk tokens. I am a qualified and experienced engineer but during one of the biggest building booms this country has ever known, with the industry crying out for skilled workers, I couldn’t get a start.”
The Consulting Association commentaries in Dave’s file included references to issues ranging from safety, for example, “told workforce not to work if safety conditions not up to standard”, to personal – “under pressure from wife to obtain employment” – to the comically wide of the mark, including “small and talking like a younger Alf Garnett.” In one entry, a photograph is annotated with an arrow pointing to an individual looking nothing like Dave. For Dave, though, this was no joke.
He was fired from a John Mowlem job, the Dockland Light Railway Extension project, after becoming a UCATT safety rep and raising concerns about serious accidents on site. A senior Mowlem manager earlier “took me to one side and told me about previous projects that I had worked, where I had raised safety concerns,” said Dave. “It was the clearest indication in my working life that information was being supplied about me via an external blacklist. A few days later I was dismissed.”
He was dismissed by Costain from their Goodmayes Tesco site after becoming a UCATT safety rep and raising concerns about asbestos. “Entries on my file even express doubts about the poor level of safety on the project.”
• FIRED! When it is unsafe to be safeAnd he was dismissed by Cinnamond Construction from a Schal-run British Telecom project in Brentwood after becoming a UCATT safety rep and complaining about the “pigsty” toilet facilities and the numerous reportable accidents on the site. He said: “My union safety representative credentials from this site appear on my file; this is absolute evidence that I was being victimised because of my trade union activities and for raising safety concerns.”
We’re watching you
A cover note from the Information Commissioner’s Office, which provided Dave Smith with a copy of his blacklisting file, explained “comments on the intelligence database” held by The Consulting Association “are associated to various construction companies.” Firms identified by code numbers in his file are Balfour Beatty, John Mowlem Ltd, Costain UK Ltd, Laing O’Rourke, Crown House Technologies, Kier Ltd, Bam Construction and Vinci plc. Entries in The Consulting Association’s file on Dave Smith included:
Who really pays for blacklisting?
In July 2009, private investigator Ian Kerr, the man behind the Droitwich-based company trading the illegally held information on trade unionists, received a £5,000 fine. Kerr, 66, had admitted keeping the clandestine database for the past 15 years. Knutsford crown court heard 44 “high street” construction companies had given around £500,000 in the past five years to Kerr's agency to record personal and employment details of allegedly troublesome workers. Kerr is now living on a state pension, though it is believed until the privacy watchdog shut down The Consulting Association he was one of four people each being paid between £46,000 and £48,000 a year.
About 90 per cent of the information stored by the firm came from the contributing companies, to be shared with other firms so they could vet workers before they were employed or winnow out “troublemakers” already on the books.
Until this year the government maintained there was no evidence of blacklisting, but then clandestine and illegal operators aren’t going to advertise. The absence of documentary evidence of blacklisting was used by the government to justify its decision not to enact anti-blacklisting provisions included in the 1999 Employment Relations Act. The government did consult, in 2003, and was assured by major construction firms that the practice did not occur.
It was only in July 2009, after the Information Commissioner went public, that the government reopened the consultation and indicated it intended to outlaw blacklisting of trade unionists.
Dave says the Information Commissioner’s probe provides conclusive proof these firms “openly lied in government consultation processes in the past in order to alter legislation. Even now they have been caught red-handed they are still employing PR consultants to go on TV and swear black is white that they don’t agree with blacklisting. They make me sick. The likely outcome is that the same firms will win more industry awards for advances to safety - and building workers will continue to die.”
Contributors to The Consulting Association coffers include Balfour Beatty, Costain, Laing O'Rourke and Sir Robert McAlpine. The amount of vetting revealed by the investigation is staggering. The 44 contributing firms paid an annual subscription of £3,000 to The Consulting Association. But they also paid a further £2.20 for every record check. Skanska and Sir Robert McAlpine – which does not deny using the service, but denies blacklisting – were invoiced for £28,122 and £26,840 respectively in 2008, on top of the subscription fee. Balfour Beatty firms stumped up about £9,000. At £2.20 a go, that would suggest these three firms alone ordered around 25,000 searches last year.
• Full list of construction firms that backed the blacklister
• Who paid what to the covert blacklisting outfit?
• Government promises blacklisting lawBut the firms were not just customers of The Consulting Association. Confidential internal documents reveal they ran the show. The Consulting Association constitution shows that the organisation was “collectively” owned by the major construction companies that paid an annual £3,000 subscription. The covert blacklisting organisation was managed by a chairman, chief executive and finance committee which met regularly. Companies wanting to join the operation had to meet agreed criteria covering size of undertaking and management style. One industry executive said the firms’ personnel directors gathered for annual meetings, adding: “Everybody in the industry knew about Kerr because it was long-standing. It was an open secret in the industry”.
This mirrors the structure of the Economic League, a construction industry blacklisting organisation that ceased operation in the late 1980s after its activities were exposed. It is known Kerr worked for this organisation, involved particularly with ‘the Service Group’ of construction firms. It is believed he started The Consulting Association with records taken from Economic League files.
Little justice for wrecked lives
Hopes the Information Commissioner’s probe would lead to justice for the fired workers evaporated quickly. TUC general secretary Brendan Barber, commenting on the £5,000 fine on Ian Kerr for Data Protection Act offences, said: “This fine is totally inadequate and in no way reflects the seriousness of the offence. Thousands of trade unionists have been unable to work as a result of this man's activities, and may struggle to get work in the future.”
Construction union UCATT said it was “extremely dismayed” by the lenient sentence. General secretary Alan Ritchie said: “Ian Kerr wrecked the lives of hundreds of construction workers, many of whom were forced out of the industry.” Dave commented: “People lost their homes because of the blacklist. Ian Kerr must be laughing.”
But if Kerr got off lightly, the major construction firms that bankrolled The Consulting Association have escaped justice entirely. Fewer than a third of the firms that backed the blacklisting agency received official Information Commissioner’s Office (ICO) enforcement notices, warning them they will be prosecuted if they set up a new blacklist. Top contributors in 2008, Skanska and Sir Robert McAlpine, did not receive enforcement notices and have indicated they will not be the subject of any action at all by the Information Commissioner.
In August 2009, the Information Commissioner’s Office (ICO) served enforcement notices on just 14 of the 44 firms behind The Consulting Association. The others were just as guilty, but it is thought they would have challenged any enforcement measures in the courts. Given the small fines available to the Information Commissioner, becoming embroiled in a series of legal cases with cash-rich and litigious construction firms was not a cost effective option.
Blacklisted workers form action group
An informal support network for building workers blacklisted for their trade union and safety activities has been established following a July 2009 meeting at Westminster. Labour MP John McDonnell hosted the meeting at the House of Commons, at which a decision was made to set up the Blacklist Support Group. The group said it planned to investigate the prospects of a potential class action civil claim and cases under human rights legislation. It also aims to “expose the illegal practices of the major construction firms involved in blacklisting.”
Unite activist Steve Kelly is one of the blacklisted workers. “Companies such as Balfour Beatty, Costain and Carillion are not setting fire to this list anytime soon, and that's why we need to organise to give those on the blacklist a coherent, collective voice,” he said. The Blacklist Support Group wants action to be taken against the major site companies named by the Information Commissioner, who seized a database of over 3,200 illegally held records in a February raid on the industry-backed covert blacklisting group The Consulting Association.
More information: www.hazards.org/blacklistblog
David Smith, Deputy Information Commissioner, said: “Fourteen firms paid for personal details about construction workers without those people knowing. The individuals were denied the opportunity of explaining or correcting what may have been inaccurate personal information about them and which could have jeopardised their employment prospects in the construction industry.” He added: “We have used the maximum powers available to us and this enforcement action sends a strong signal that organisations must take the Data Protection Act seriously. Should the firms fail to adhere to the terms of the Notices they could face prosecution.”
Six of the firms targeted are divisions of construction giant Balfour Beatty. It was the third largest contributor to The Consulting Association’s coffers in 2008, although trailed far behind both Skanska and Sir Robert McAlpine.
The companies that received ICO enforcement notices were: Balfour Beatty Civil Engineering Limited; Balfour Beatty Construction Northern Limited; Balfour Beatty Construction Scottish & Southern Limited; Balfour Beatty Engineering Services (HY) Limited; Balfour Beatty Engineering Services Limited; Balfour Beatty Infrastructure Services limited; CB&I UK Limited; Emcor Engineering Services Limited; Emcor Rail Limited; Kier Limited; NG Bailey Limited; Shepherd Engineering Services Limited; SIAS Building Services Limited; and Whessoe Oil & Gas Limited.
Dave is angry that ICO will see none of the firms in court. “Blacklisting safety reps kills people – full stop,” he said. “It creates an atmosphere where workers are afraid to raise safety concerns because they're scared they will lose their jobs.”
The proposed blacklisting law is “a step in the right direction,” but it “will only be of any use if they are enforceable and if there is a real deterrent, if the fines on the companies involved are at a level that hurt them and if those victimised and forced onto the dole can get proper compensation.”
Failed by the safety watchdog
Dave is unimpressed by the Health and Safety Executive (HSE). He was fired from three sites after being elected a UCATT safety rep and raising health and safety concerns. “At the time of each dismissal from site I contacted HSE to inform them of my dismissal, expressing the opinion that I was being deliberately targeted because of my activities as a union safety representative,” he said. “On every occasion the HSE inspectors refused to investigate my case, claiming it was an industrial relations matter and not a health and safety issue.
“The blacklist and its impact has been common knowledge in the building game for decades. Apparently the only people who didn't know it existed were the HSE and the government. They are either criminally naive or deliberately turning a blind eye. Either way they are implicated in what has been going on.” He wants the firms behind The Consulting Association to be barred from obtaining public contracts and he wants HSE’s role investigated.
But while his union role may have left him personally vulnerable, he says it is a life-saving necessity. “I am a great believer in collective action. Even the biggest employers were prepared to talk to us when we were well organised and we spoke as one voice. Trade union activity in the workplace involving as many of our members as possible must always be the first port of call for any workers.”
How blacklisting hurt me - the Dave Smith interview
In July 2009, Hazards spoke to union safety activist Dave Smith about the impact being blacklisted had on his life.
Hazards What impact did blacklisting have on you?
Dave My kids were on milk tokens. I am a qualified and experienced engineer but during one of the biggest building booms this country has ever known, with the industry crying out for skilled workers but I couldn’t get a start.
Hazards Why were you blacklisted?
Dave Everything in my file relates to safety - page after page of concerns about asbestos, near fatal accidents, god awful toilet facilities. If I discussed it with a site agent, it ended up in my file. Even my UCATT safety reps credentials were on the file. It could not be clearer that if you were a building worker with genuine concerns about safety and were prepared to actually raise issues with management then you were sacked and then hounded out of the industry.
My UCATT full-time official Ronnie McKay jokes that as soon as he visited a building project to inform the site agent that I was the newly appointed safety rep, he would have to rush back to the office and fax over the credentials that same afternoon because we both knew the clock was ticking and it would only be matter of days before I was sacked.
Hazards What effect did blacklisting have on site safety?
Dave Blacklisting safety reps kills people – full stop. It creates an atmosphere where workers are afraid to raise safety concerns because they're scared they will lose their jobs. So even when everyone on the site knows that the bosses are cutting corners to save money, people just keeps their head down. The result is the worst fatality rate of any industry in the UK.
The major contractors are safety hypocrites - all the publicity campaigns, site posters and safety summits are there as window dressing. Only someone who has never worked in the industry or is incredibly gullible would believe a single word they say on safety.
The blacklist and its impact has been common knowledge in the building game for decades. Apparently the only people who didn't know it existed was the HSE and the government. They are either criminally naive or deliberately turning a blind eye. Either way they are implicated in what has been going on.
Hazards What do you think of the fine on Kerr [the convicted boss of blacklisting organisation The Consulting Association]?
Dave UCATT said it all: £5k is a slap in the face to all building workers. People lost their homes because of the blacklist. The Consulting Association was clearing hundreds of thousands of pounds every year. Ian Kerr must be laughing [Kerr was paid between £46,000 and £48,000 a year until the organisation was shutdown by the Information Commissioner in March 2009]
Hazards Do you believe blacklisting no longer occurs or that there are no more blacklisting outfits in business?
Dave Of course blacklisting still exists and not just in the building industry. It is just so blatant in construction that after many years of campaigning the press managed to expose it and we have now the evidence to prove what we always knew. The pitiful fine on Ian Kerr is a green light for other firms to take his place.
Hazards What should happen to the firms that used blacklisters?
Dave What should happen is the 44 firms named by the Information Commissioner should be immediately barred from tendering for any government funded work. They have openly lied in government consultation processes in the past in order to alter legislation. Even now they have been caught red-handed they are still employing PR consultants to go on TV and swear black is white that they don’t agree with blacklisting. They make me sick. The likely outcome is that the same firms will win more industry awards for advances to safety - and building workers will continue to die.
Hazards Do you think the proposed law will sort out the problem?
Dave The proposed blacklisting laws are a step in the right direction. Let’s be honest, it’s about time. But they will only be of any use if they are enforceable and if there is a real deterrent, if the fines on the companies involved are at a level that hurt them and if those victimised and forced onto the dole can get proper compensation.
Hazards What are you doing to get justice?
Dave I am a great believer in collective action. Even the biggest employers were prepared to talk to us when we were well organised and we spoke as one voice. Trade union activity in the workplace involving as many of our members as possible must always be the first port of call for any workers.
Unfortunately I now work outside the construction industry and the only recourse to justice seems to be though the legal route. I would be lying if I said I had great faith in the British legal system - Ian Kerr's fine only reinforces my scepticism. But I believe my blacklist file is prima facie evidence of victimisation, discrimination and detriment because of trade union and safety reasons. It is a clear breach of Article 11 of the European Convention on Human Rights: the right to free assembly and association.
Myself, along with thousands of other decent hardworking construction workers have had our lives ruined and our human rights breached by the actions of these multi-million pound turnover transnational corporations – and by the inaction of the Health and Safety Executive (HSE). There is no guarantee that we will win any kind of justice in the courts - but we will have a bloody good attempt.
Which companies used The Consulting Association?
The list below shows the companies that subscribed to The Consulting Association. The use of brackets indicates where companies have undergone a change of name or where subsidiaries have been absorbed by parent companies. Ex-members may no longer exist or no longer avail themselves of the service.
• Amec Building Ltd
• Amec Construction Ltd
• Amec Facilities Ltd
• Amec Ind Div
• Amec Process & Energy Ltd
• Amey Construction – Ex-member
• B Sunley & Sons – Ex-member
• Balfour Beatty
• Balfour Kilpatrick
• Ballast (Wiltshire) plc – Ex-member
• Bam Construction (HBC Construction)
• Bam Nuttall (Edmund Nuttall Ltd)
• C B & I
• Cleveland Bridge UK Ltd
• Costain UK Ltd
• Crown House Technologies (Carillion/Tarmac Const)
• Diamond M & E Services
• Dudley Bower & Co Ltd – Ex-member
• Emcor (Drake & Scull) - ‘Ex Ref’
• Emcor Rail
• G Wimpey Ltd – Ex-member
• Haden Young
• Kier Ltd
• John Mowlem Ltd - Ex-member
• Laing O’Rourke (Laing Ltd)
• Lovell Construction (UK) Ltd – Ex-member
• Miller Construction Limited – Ex-member
• Morgan Ashurst
• Morgan Est
• Morrison Construction Group – Ex-member
• N G Bailey
• Shepherd Engineering Services
• Sias Building Services
• Sir Robert McAlpine Ltd
• Skanska (Kaverna/Trafalgar House Plc)
• SPIE (Matthew Hall) – Ex-member
• Taylor Woodrow Construction Ltd – Ex-member
• Turriff Construction Ltd – Ex-member
• Tysons Contractors – Ex-member
• Walter Llewellyn & Sons Ltd – Ex-member
• Whessoe Oil & Gas
• Willmott Dixon – Ex-member
• Vinci PLC (Norwest Holst Group).
Source: Information Commissioner’s Office.
Who financed the covert blacklisting outfit?
|What blacklist firm invoiced contractors [Figures for financial year 2008/09]|
|Sir Robert McAlpine||£26,842|
|Balfour Beatty Civil Engineering||£777|
|Balfour Beatty Scottish and Southern||£75|
|Balfour Beatty Infrastructure/
Balfour Beatty Infra Services
|Crown House Technologies/Crown House||£2,477|
|Edmund Nuttall/Bam Nuttall||£636|
|SIAS Building Services||£114|
|HBG Construction/Bam Construction||£100|
|Amec/Amec industrial division||£50|
|Spie Matthew Hall||£50|
Government promises blacklisting law
The government intends to introduce regulations to make it unlawful for trade union members to be denied employment through secret blacklists. Launching a consultation in July 2009, business secretary Peter Mandelson said: “Blacklisting someone because they are a member of a trade union is totally unacceptable. I am determined to act quickly to stamp out this despicable practice.”
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.
Following the consultation, which ends on 18 August 2009, the government plans to seek parliamentary approval for the regulations in the autumn and to implement them as soon as possible after that.
TUC general secretary Brendan Barber commented: “It is vital that the introduction of new regulations is treated as a priority, to prevent the profoundly undemocratic practice of discrimination against those who choose to join unions.” It was also profoundly unsafe. The Consulting Association’s illegally held records commonly listed construction workers as troublemakers after raising concerns about site safety. UCATT general secretary Alan Ritchie said his union welcomed the move to end blacklisting, but added “we are disappointed that the consultation document fails to recommend any compensation for existing victims of blacklists.”
Mick Holder of the Hazards Campaign says the proposed law has gaping holes that will be exploited by blacklisters. 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.”
FIRED! When it is unsafe to be safe
Dave Smith explains how trying to save lives repeatedly cost him his livelihood.
When the blacklisting became most vicious in 1998 onwards, I found it almost impossible to gain employment as an Engineer on any major project, even via employment agencies. Whenever I did manage to find work, I would be dismissed within a very short period.
All of these incidents above are well are documented in my blacklist file with the information being supplied by the companies involved themselves (according to the code numbers on the files as identified and confirmed by the Information Commissioner). Following each incident the main source from each company continued to supply information to the Consulting Association in order to prevent me from gaining employment at any of their future projects (or with any of the other 44 major construction firms who used the services of the Consulting Association blacklist).
At the time of each dismissal from site I contacted the Health and Safety Executive to inform them of my dismissal, expressing the opinion that I was being deliberately targeted because of my activities as a union safety representative. As the same pattern was repeated on numerous occasions, I believed that I was being blacklisted for my trade union and safety activities. I stated this to HSE Inspectors on many occasions.
On every occasion the HSE Inspectors refused to investigate my case claiming it was an industrial relations matter and not a health and safety issue.
I believe the construction industry blacklist is irrefutable evidence that workers raising safety concerns in the industry were dismissed, with trade union safety representatives being particularly targeted. The fact that a blacklist existed was common knowledge amongst trade union and safety activists within the construction industry at the time. The evidence now available of the extent of the blacklist means that its existence must have been known by a considerable number of people at senior levels within the industry including individuals employed by public bodies including the HSE.
I believe that the Health & Safety Executive’s failure to investigate whether a blacklist of safety representatives existed and to prevent its continuation contributed to the culture in the industry, where workers were not prepared to raise safety concerns because of fear that they will lose their jobs. In an industry with such a poor safety record and high number of workplace fatalities, this failure to act by the HSE undoubtedly contributed to the death toll. I also believe the failure to act was a breach of my human rights under Article 11 of the European Convention on Human Rights to the Right to Freedom of Association and Assembly as given effect by Section 3 of the Human Rights Act 1998 and the HSE were in breach of Section 6 of the Human Rights Act which places a duty upon public bodies.
All fired up
How blacklisting hurt me – the Dave Smith interview more
Which companies used The Consulting Association? more
Who financed the covert blacklisting outfit? more
Government promises blacklisting law more
FIRED! When it is unsafe to be safe more
ICO webpage on The Consulting Association
Blacklist Support Group - For further information email email@example.com