The Government doesn’t need to consult again before outlawing a vile practice that creates fear at work. It just needs to act
IT IS ironic that, in a time of recession, employment practices which belong to the dark days of the 1930s depression have reared their ugly head. The blacklisting of trade unionists is one of them.
The revelation that an organisation called the Consulting Association had files on thousands of construction workers and that more than 40 construction companies were using them to vet applicants did not come as that much of a surprise.
The sinister activities of the Economic League, which ran blacklists of workers and enjoyed construction industry backing and financing throughout Margaret Thatcher’s years in power, and which was wound up in 1993, were unlikely to have been altogether abandoned or forgotten.
Blacklisting creates a climate of fear. Its impact on workers, on their employment rights and on trade union rights will inevitably be more acute at a time of job losses, mounting unemployment and extreme uncertainty in the construction and other industries.
And while blacklisting is traditionally associated with identifying people according to their union and political activities, it is also used to discriminate against people on racial and ethnic grounds, sexual orientation and any number of other issues. Unsubstantiated allegations which blight a worker’s career would shame a far less developed country than ours.
Government ministers were quick to condemn the activities of the Consulting Association, which were revealed by the Information Commissioner. But it’s taken them a while to announce that they will take action to end blacklisting.
While Business Secretary Peter Mandelson’s pledge is welcome, it is disappointing that the government feels it must have yet another consultation before changing the law.
The fact is that there are simple steps that the Government could take that would immediately address the injustice of blacklisting.
Outlawing blacklisting by regulating against the compilation of lists such as those run by the Consulting Association is an easy move for the Government.
All that is required is for a power available to the Secretary of State, already sitting on the statute book, to be enabled.
Section Three of the 1999 Employment Relations Act provides that the Secretary of State may make regulations prohibiting the compilation of lists which contain details of members of trade unions or persons who have taken part in the activities of trade unions, and are compiled with a view to being used by employers or employment agencies for the purposes of discrimination in relation to recruitment or in relation to the treatment of workers.
The section goes on to allow individuals whose details appear on blacklists to be compensated and to allow unions to take proceedings on behalf of members.
The regulations extend criminal liability for the creation of blacklists to anyone who aids the offence, including employers.
In 2003, when the Government consulted on the regulations, a number of trade unions, including Unite, said that rather than wait for evidence of blacklisting, the regulations should be enacted immediately. They weren’t.
In some senses, there being no evidence or knowledge of blacklisting taking place in recent years provided by those who responded to the consultation, it was predictable that the Government opted against immediate enactment.
That was then and this is now. There’s no need to go back and consult again.
The regulations were meant for when evidence emerged. That is the situation we now face and the time is right to bring them into effect.
The Information Commissioner says he will prosecute the Consulting Association and is considering what regulatory action to take against the household name construction companies to whom the information was seemingly supplied. It would be tardy to say the least if the Government failed to use its existing powers under the regulations to ensure that we have the structures in place to prevent a re-occurrence.
Ellie Reeves is an employment rights lawyer at Thompsons, the trade union solicitors, and a member of the Labour Party’s National Executive Committee
