Background to the claim
For over 30 years, an organisation called The Consulting Association was allegedly paid by key players in the construction industry to collate information on individual workers who played an active role in trade unions in the industry. This database was seized by the Information Commissioner’s Office in 2009. Now, a number of those workers allege that they have been denied employment opportunities and are claiming for loss of earnings. This article looks at the relevant law in this area.
The blacklisting rules
The Employment Relations Act 1999 (Blacklists) Regulations 2010 governing the blacklisting of employees came into force on 2 March 2010. Since then, it has been unlawful to compile, use, sell or supply a "prohibited list" – that is to say, a list containing details of individuals and their trade union membership and/or activities with a view to it being used by employers for potentially discriminatory purposes.
Guidance produced by the UK’s Department for Business, Innovation and Skills (BIS) makes it clear that, in order to constitute a list, details of two or more people are required. However, the data does not have to be set out in a traditional list or database format. Instead, it can be held in different locations in a variety of software configurations. Haphazard collections of information may constitute a list provided that they are connected and are for the same purpose. Consequently, the definition of "list" is far wider than most people would think.
There are, though, five exceptions where the use of a prohibited list will not be unlawful:
- Where a prohibited list is unknowingly supplied (BIS guidance gives the example of unknowing delivery by the postal services)
- Where the list is to provide evidence of a breach of the regulations in the public interest, provided it is not published without the consent of the individuals named in it
- Where the main purpose of the list is to help with a job appointment where the post reasonably requires experience or knowledge of trade unions
- Where the list is required by law
- Where the list will be used in legal proceedings or is needed to obtain (or to give) legal advice about compliance with the regulations
In addition, the regulations make it unlawful for someone to be refused employment for reasons related to a prohibited list. The regulations do not specify what "a reason relating to" may include. However, the BIS guidance suggests that the phrase will be wide-reaching. It will, for instance, cover cases where employers refuse to employ individuals because they are included on a prohibited list, as well as where employers mistakenly believe that individuals are included on such a list.
Where the regulations are breached and individuals are refused employment for reasons related to a prohibited list, they can bring a claim in the employment tribunal. If they are successful, compensation may be awarded both for injury to their feelings and for loss of earnings. The tribunal may also recommend that the company takes action to correct the adverse effect on the claimant.
In addition, where an individual is dismissed for reasons related to a prohibited list, the dismissal will automatically be unfair and the individual will not require the usual qualifying period of service in order to bring a claim. If the claimant is successful, there is a minimum basic award of £5,300. They may also recover compensation for loss of earnings for whatever period the tribunal considers just and equitable, subject to the statutory cap (which is currently £72,300).
While the compilation and use of a blacklist may well breach the regulations, other legal issues can also arise:
- Data protection - details of trade union membership constitute "sensitive personal data". Any such list is therefore likely to breach the Data Protection Act 1998, which can result in significant fines.
- Detriment due to trade union involvement - under the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), it is unlawful to subject an applicant or an existing worker to a detriment on the grounds of union membership or appropriate union activities. Employment tribunal claims may be pursued in the event of any breach.
- Automatically unfair dismissal - as well as being deemed automatically unfair under the blacklisting regulations, a dismissal may in any event be treated as automatically unfair under TULRCA if the principal reason for dismissal is the employee’s trade union membership or appropriate trade union activities. Again, a successful claimant will be entitled to the minimum basic award and possibly also compensation up to the statutory cap.
Whether the claim is made under the blacklisting regulations or under TULRCA, the usual requirement for a minimum period of qualifying service (one year for employees recruited before 6 April 2012 and two years for those recruited on or after that date) does not apply to automatically unfair dismissal claims.