Whistleblowing ETs could attract regulators

PHONE HSE? Things could be looking up for whistleblowers under new employment tribunal (ET) rules.
PHONE HSE? ETs could finger safety offenders.

Employers that choose to dismiss or pay off workplace whistleblowers could face further investigation from 6 April, when the current bar on employment tribunals (ETs) revealing any details of whistleblowing allegations outside of the tribunal process is lifted.

Under the new system, tribunals will be able to refer claims to the relevant regulatory authority, such as the Serious Fraud Office or Health and Safety Executive, for further investigation, reports human resources magazine Personnel Today.

It quotes Mark Hammerton, partner at international law firm Eversheds. “To date, even where allegations heard by an employment tribunal involved potentially serious fraud, health and safety breaches or financial irregularities, employment tribunals have been unable to pass them on,” he said.

“I would urge all employers to now review their current procedures and practices for dealing with whistleblowing claims and to ensure any such allegations are addressed as early as possible. Failure to do so could otherwise mean that employers learn of their alleged wrongdoings only once they have escalated to a formal external investigation.”

A report last week by the charity Public Concern at Work revealed that work safety is a top whistleblower concern and one of the most common reasons for whistleblower employment tribunals.

Work safety is a top whistleblower concern

The number of employees claiming to have been sacked, mistreated or bullied for exposing corrupt practices at work has increased tenfold over the last decade, according to official figures – and raising health and safety issues remains one of the top concerns.

Whistleblowing charity Public Concern at Work (PCAW) has called on the government and employers to do more to encourage people to speak up about malpractice or wrongdoing by publicising existing support and legal protection for workplace whistleblowers.

Commenting on the release of ‘Where’s whistleblowing now – 10 years of legal protection for whistleblowers’, its report into ten years of the Public Interest Disclosure Act (PIDA), the legislation intended to protect from reprisal workers who raise a matter of public concern, PCAW director Catherine Wolthuizen said: “Workers in the UK are increasingly prepared to speak up about wrongdoing in the workplace, but the ever-rising number of Employment Tribunal claims for victimisation demonstrates employers need to do more to protect their staff from retribution.”

Employment tribunal statistics show that the total number of people using the PIDA whistleblowing legislation, which aims to protect workers from victimisation if they have exposed wrongdoing, increased from 157 cases in 1999 to 1,791 ten years later.

Workplace safety is the second most common reason individuals contact the PCAW helpline, accounting for 17 per cent of all calls, topped only by financial malpractice at 26 per cent. A PCAW breakdown of “types of wrongdoing in PIDA judgments” says 12 per cent of these tribunal decisions relate to work safety, behind only financial malpractice (19 per cent) and “consumer/competition and regulation” (13 per cent).

Labour leaves blacklisted high and dry

Construction workers like blacklisted bricklayer turned union full-timer Mick Dooley – whose human rights have been traduced by a practice revealed by their files to have been going on since the 1970s – have been left empty-handed, denied any compensation for the losses they have suffered at the hands of the construction companies, according to labour law expert Professor Keith Ewing.

Writing in The Guardian, Prof Ewing noted: “In the absence of a right not to be blacklisted, Dooley argued that he had been the victim of anti-union discrimination. A London employment tribunal has held against him, on the ground that he does not qualify under the legislation. Even if he did, like other workers in the same position the problems of proof would not be easy to overcome (for obvious reasons).”

The Kings College London academic indicates that part of the problem arises because Labour has only just introduced anti-blacklisting regulations. “But they are woefully inadequate. Not only do they fail to make blacklisting an offence, but they also fail to make blacklisting unlawful.”

He adds: “The biggest failure of the regulations, however, is the government’s failure to take steps to compensate the victims of blacklisting, who will now have to pursue a claim to the European court of human rights…”

He contrasts Labour’s inaction and weak laws on union victimisation with the action by Margaret Thatcher when she came to power. Anti-union laws curbed the power of unions  and a retroactive scheme was introduced to compensate workers dismissed because of union non-membership.

“If the Tories can compensate at public expense workers who suffered loss because of their non-membership of a trade union, then surely a Labour government could have done the same on behalf of workers whose lives have been blighted because of their membership of a trade union, and participation in its activities. Next stop Strasbourg, it seems.”

Campaigners condemn lack of blacklisting protection

Campaigners have condemned the lack of protection given by UK employment law to trade unionists falling victim of employer blacklists. They were speaking out after an 8 March written judgement from the first full-merits blacklisting Employment Tribunal, Dooley v Balfour Beatty, found in favour of the company.

Balfour Beatty did not deny using an illegally compiled blacklist to target bricklayer and union activist Mick Dooley. Instead it used documents it had made available to disgraced and now shutdown blacklisting organisation The Consulting Association in its tribunal submission.

While the judge, Mr BT Charlton, described blacklisting as “ghastly”, he found in favour of the construction giant because while Balfour Beatty has sought Mick Dooley’s dismissal, it wasn’t his actual employer – and the law only covers employees.

According to campaign group the Blacklist Support Group: “In an industry where sub-contracting and agency labour is widespread, this effectively allows the major multi-nationals such as Balfour Beatty, Sir Robert Mc Alpine, Skanska and Costain to blacklist workers who complain about safety or unpaid wages with impunity (as almost all labour is sub-contracted out).”

A spokesperson for the group said: “The Dooley decision and the new Blacklisting Regulations are basically a get out of jail free card for the major contractors. The blacklisters can hide behind the fact that they sub-contract most of the labour on major projects to escape any kind of legal responsibility.

“The new regulations will not make an ounce of difference to the likelihood of success for any blacklisted building worker seeking legal redress. If the new Regulations fail to make any difference for workers who can prove they have been blacklisted, what is their purpose?”

The Consulting Association “conspiracy” is a clear breach of Article 11 of the European Convention on Human Rights, he added. “The Blacklist Support Group send out an unambiguous message today: if our human rights cannot be upheld in the UK courts or from UK Regulations, then we will be taking our claims to the European Court of Human Rights. We have suffered for many years: we are prepared to fight all the way.”

New blacklisting regulations “too weak”

Construction union UCATT has said it is “bitterly disappointed” with the new blacklisting regulations, warning the measures are so weak that they will not prevent blacklisting from occurring.

Employment relations minister Lord Young  announced the new measures, which came into effect on 2 March. He said: “Blacklisting someone because they are a member of a trade union is underhand, unfair and blights people’s lives.

“The new regulations outlaw the compilation, dissemination and use of blacklists. They have been designed to build on existing protections in the area, which are found in trade union and data protection law, Good employers who operate fair and open vetting processes have nothing to fear from these regulations.” He added: “I am confident that this new piece of legislation will bring to an end the disreputable practice of blacklisting once and for all.”

The regulations:
* make it unlawful for organisations to refuse employment or sack individuals as a result of appearing on a blacklist;
* make it unlawful for employment agencies to refuse to provide a service on the basis of an individual appearing on a blacklist; and
* enable individuals or unions to pursue compensation or solicit action against those who compile, distribute or use blacklists. 

However, Alan Ritchie, general secretary of UCATT, said these measures were insufficient, and said the government had ignored its call for the regulations to be beefed up. “Fortunately for Lord Young blacklisting doesn’t occur in the House of Lords but ordinary construction workers are not so privileged,” he said.

UCATT argued that the regulations were deficient because they did not make blacklisting a specific criminal offence and only prevented workers from being blacklisted for undertaking, the narrowly defined, “trade union activities”.

The union adds that the regulations also fail to grant an automatic right to compensation for any worker who discovers that they have been blacklisted. If a blacklist is discovered workers will not be automatically told that they had been blacklisted.

Mr Ritchie said: “Cynical construction employers will recognise the weakness of the regulations and could continue to blacklist workers. They know that they are unlikely to get caught and if they do they will merely get a slap on the wrist. UCATT will continue to campaign to have the regulations overhauled so that they are truly effective in stamping out this despicable practice once and for all.”

In March 2009, the Information Commissioner reported that 40 construction companies had subscribed to a database used to vet construction workers, which has now been closed under data protection law.  On 16 July last year, Ian Kerr, a former Special Branch officer and the individual who operated the database, was fined £5,000 at Knutsford Crown Court for committing a criminal offence under data protection law.