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       Hazards special online report, June 2016
Blacklisters: ‘The only thing they are sorry for is getting caught’
Major construction firms, terrified at the prospect of facing examination in the dock, have paid £75m to settle blacklisting claims out-of-court. Hazards editor Rory O’Neill says some top bosses may yet end up answering charges, this time for perverting the course of justice as they tried to cover their criminal tracks.

 

When on 9 May 2016 eight of the country’s biggest construction firms agreed to pay an estimated £50m in compensation to blacklisted workers, they hoped they had ‘drawn a line’ under a scandal that has dogged them for over six years.



COURT OUT Blacklisted workers were joined by shadow chancellor John McDonnell, a long-time supporter, outside the Royal Courts of Justice in London, to celebrate their May victory over the country’s biggest construction firms.

In all, 771 workers received payouts averaging £65,000. Some of the out-of-court settlements with workers victimised for their union and safety activities are believed to be in excess of £200,000. Legal fees are put at around £25m for the long-running legal case, scheduled to go before the high court as the settlement deal was finalised.

Balfour Beatty, Carillion, Costain, Kier, Laing O’Rourke, Sir Robert McAlpine, Skanska UK and Vinci settled 256 cases with the union Unite for £10,435,000.

Construction union UCATT secured £8.9m in 156 cases. GMB obtained £5.4m for 116 blacklisted workers. And law firm Guney, Clark and Ryan is understood to have secured £6.6m for the 167 victims it represented.

 

Called to account

Unions and campaigners welcomed what is a remarkable victory over well-resourced opposition that had initially denied, lied and tried to buy off victimised workers on the cheap, but eventually handed over a “massive” settlement wrapped up in an apology.

Unite general secretary Len McCluskey said “the massive scale” of the agreed damages “shows the gravity of the misdeeds of these major construction companies which created and used the Consulting Association as a vehicle to enable them to blacklist trade unionists on behalf of more than 30 construction companies.”



REAL CONVICTION  Only one person has been prosecuted for their criminal culpability in the blacklisting scandal, with not a single construction director behind the illegal operation having faced charges. However, Ian Kerr, the former head of the Consulting Association – the industry financed organisation that spied on union and safety activists and provided the information to major site firms – has now been joined by award-winning human rights campaigner Dave Smith, as the focus of a prosecution. more

Dave Smith, secretary of the Blacklist Support Group, said: “Despite all of the denials and attempts to cover up their secret conspiracy, the largest multinationals in the construction sector have been forced to pay out millions in compensation. Make no mistake, the High Court action is a historic victory for the trade union movement against the vicious face of free market capitalism.”

TUC head of safety, Hugh Robertson, noted: “Without the support of GMB, Unite, UCATT and of course the Blacklist Support Group, the workers would have either received nothing, or... some token amount. That in itself is clear evidence of the importance of strong independent trade unions.”

 

Running scared

The courtroom capitulation came as industry leaders faced the prospect of questions in open court about their involvement with the covert blacklisting organisation, the Consulting Association (Hazards 129).

A statement from the contractors said: “These construction companies now wish to draw a line under this matter and continue to work together with the trade unions at national, regional and site level to ensure that the modern UK construction industry provides the highest standards of employment and HR practice for its workforce.”

The firms avoided a trial, while accepting that “their secret vetting operation should never have happened”. But that is not the whole story, or necessarily the end of the legal jeopardy facing at least some of the industry’s most prominent figures.

Evidence obtained by the claimants before the settlement suggests executives at several firms destroyed or ordered the destruction of evidence to cover up the involvement of high profile individuals when the Consulting Association’s illegal activities were exposed in 2009.

IT’S PERSONNEL  Serious and possibly criminal misbehaviour by top human resources (HR) managers involved in the blacklisting of construction workers has been met with a “disappointing” response from their professional body CIPD, the union GMB has said. more

The Blacklist Support Group says this potentially perverts the course of justice, a matter it says victimised workers are raising with the Metropolitan Police. The documentation held by claimants’ lawyers indicates that in the immediate wake of the raid by the Information Commissioner’s Office (ICO) in 2009 that led to the closure that year of the Consulting Association, David Cochrane, then head of human resources at Sir Robert McAlpine, instructed the covert blacklister to destroy evidence and expunge all mentions of his boss, company director Cullum McAlpine, from the documents.

Cullum McAlpine [right] is a member of the Sir Robert McAlpine founding family. He was chair of the illegal blacklister when it was formed in 1993 and he provided the seed cash for its creation.

 

 




David Cochrane [left] also served as chair of the association, and was McAlpine’s contact person with the blacklister when the scandal erupted.

Both deny involvement in destroying any relevant files and categorically deny attempting to pervert the course of justice.

 

Covering their tracks

It is a position they may find hard to defend. The company knew that after the February 2009 ICO raid, evidence should not have been interfered with.

The evidence implicating Cochrane includes Kerr’s handwritten notebook, which records discussions about how to respond to the ICO action. Kerr writes that he was instructed by Cochrane to: “Ring everyone – Cease trading – Close down – We don’t exist anymore – Destroy data – Stop Processing” (below). The note also records details of conversations with other senior construction industry managers who say they have already destroyed the documents they held.

In a notebook entry dated 23 February 2009, Kerr appears to record Cochrane instructing him as follows: “Cullum McAlpine – his name – remove this from any documents.”

Before the compensation deal was struck, Cullum McAlpine had already indicated he would not give evidence at the High Court, something revealed in evidence submitted to the High Court by his company and a move described by Unite as ‘a further gross insult’ to blacklisted workers.

Commenting on the alleged attempt to purge any incriminating evidence from Consulting Association files, Blacklist Support Group secretary Dave Smith said: “If senior individuals gave orders or knowingly colluded in destroying documents that anyone could have predicted would undoubtedly have been used as evidence in numerous legal proceedings, they need to be held to account for their actions.

“The only thing firms are sorry for is getting caught. This is not the end of the matter – this is unfinished business.”

 

 


 

Blacklist campaigner highlights injustice

Only one person has been prosecuted for their criminal culpability in the blacklisting scandal, with not a single construction director behind the illegal operation having faced charges. However, Ian Kerr, the former head of the Consulting Association – the industry financed organisation that spied on union and safety activists and provided the information to major site firms – has now been joined by award-winning human rights campaigner Dave Smith, as the focus of a prosecution.

Smith, a blacklisted worker and secretary of the Blacklist Support Group, was found guilty on 10 June 2016, but discharged at the City of London magistrates’ court for disrupting traffic in Park Lane, London, in a blacklisting protest in March 2015.

Commenting after his conviction, he said since the scandal erupted, “only two people have ever been convicted because of their involvement with blacklisting — Ian Kerr and me.” Smith was not fined but the offence will be held on his record for the next six months.

Blocking roads has been a form of civil disobedience used effectively by campaigners in the UK, the US and elsewhere, and is a valued resource in the modern union organiser’s toolbox (Hazards 134).

In June 2016, the Green Party came out in support of calls for a public inquiry into the practice of blacklisting trade unionists and campaigners. Outgoing Green leader Natalie Bennett said: “The time has come for a public inquiry into the shameful practice of blacklisting. It’s vital that those who were discriminated against, and the public, gain an understanding of how this information on suspected trade unionists was collected and how it was shared with prospective employers.”

Green Party member of the House of Lords Jenny Jones added that companies caught using blacklisting should not be left with the responsibility for ridding the industry of the practice. “That’s why parliament must step up and kick-start a public inquiry into blacklisting,” the baroness said. “I’m also urging any worker who was discriminated in this way to speak to me about their experiences. I’ll do all that I can to take this forward in the Lords.”

Road block: How blocking roads has become a great way of making employers change direction, Hazards, 2016.



Blacklisting - this time it’s personnel

Serious and possibly criminal misbehaviour by top human resources (HR) managers involved in the blacklisting of construction workers has been met with a “disappointing” response from their professional body CIPD, the union GMB has said.

After news of the £75m blacklisting settlement broke in May, the HR professionals’ organisation said “CIPD unequivocally condemns blacklisting and is in the process of conducting its own investigations against individual CIPD members alleged to have been involved in the practice of blacklisting. Some of these investigations are still ongoing.”

But GMB says it wrote to CIPD chief executive Peter Cheese as long ago as 18 October 2013, listing 37 senior HR professionals and other executives from the construction industry involved in the blacklisting scandal. In response Mr Cheese confirmed CIPD was investigating 19 current members.

GMB national officer Justin Bowden said: “The CIPD have had over two years seven months to conduct an investigation into 19 of their current members involved with the blacklisting scandal with no apparent results.” He added: “The blacklisting companies have apologised, it is time for the HR industry, overseen by CIPD, to do the same and accept that there was something fundamentally lacking in the ethics and professionalism of the industry at this time…

“Many of these professionals involved still hold very senior positions within the industry and other important sectors. Inaction by the CIPD is predictably disappointing but not totally surprising.”

CIPD head Peter Cheese said: “The CIPD has already bolstered its Code of Professional Conduct and provided clearer practice guidance on pre-employment vetting. We will review this on a regular basis to enable the HR community to act with the highest standards of ethics and professionalism in every aspect of its work.”

It amounts to a serious change of tack. In 2014, Mike Emmott, a top CIPD official, found himself in the firing line after telling a conference that blacklisting of trade unionists is a “big fuss about very little.”

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Major construction firms, terrified at the prospect of facing examination in the dock, have paid £75m to settle blacklisting claims out-of-court. Hazards editor Rory O’Neill says some top bosses may yet end up answering charges, this time for perverting the course of justice as they tried to cover their criminal tracks.

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Blacklisting - this time it’s personnel

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