Legal Q&A: blacklisting

In laymen’s terms, blacklisting is the creation of a list describing individuals who are not welcome in an organisation. In an employment context, this is most often discussed in terms of listing on the grounds of trade union membership or activism.

The government had the right to make blacklisting regulations built into the Employment Relations Act 1999, but didn’t exercise the right until now because there has been a debate about whether blacklisting is actually an issue in the modern employment landscape. Trade unions said blacklisting did go on, and that it was particularly prevalent in some sectors; in contrast, many employers denied it occurred.

However, in 2009, following an investigation by the Information Commissioner’s Office, it was alleged that 44 employers within the construction industry had been paying to use a blacklist of more than 3,000 individuals provided by a third-party organisation. Many of these organisations have been or currently are the subject of legal action. The Employment Relations Act 1999 (Blacklisting) Regulations 2010 are intended to make the use of blacklisting unlawful.

Q What do the regulations prohibit?

A In broad terms, the regulations prohibit three things. First, it is unlawful for anyone to compile, supply, sell or use a ‘prohibited list’. Second, it is unlawful for an employer to refuse employment to a job applicant, to dismiss an employee, or to subject an employee to any other detriment for a reason related to a ‘prohibited list’. It is also unlawful for an employment agency to refuse to provide its services to an individual for a reason related to a ‘prohibited list’.

Q The concept of a ‘prohibited list’ is obviously quite central – what is it?

A A ‘prohibited list’ must contain two features: it must contain ‘details’ of people who have been or are either trade union members or who have taken or are taking part in trade union activities; and the list must have been compiled with a view to employers or employment agencies for the purpose of discriminating either in recruitment or during employment on the grounds of trade union membership or activities.

Q What does the term ‘details’ cover?

A Details could be a simple as a list of names, addresses, national insurance numbers, photographs, newspaper clippings, work histories. It could even be a link to a website.

Q Won’t a lot of lists potentially be caught by the definition of a prohibited list?

A Yes, the first requirement for details is deliberately wide. The intention is that the question of whether or not a list is a prohibited list will be determined by the purposes for which it was created.

Q What happens if a list was created for several purposes?

A A list will be a prohibited list even if it was created for multiple purposes, as long as just one of those purposes is to treat union members or those who participate in trade union activities differently. Furthermore, each individual who is referred to on the list would be protected as a result of being on a prohibited list even if the reason he or she was included was not because of trade union membership or activities. This might be because they were a ‘problem’ for some other reason.

Q How easy will it be to prove there has been a breach of the blacklisting regulations?

A Under normal principles, it will be difficult because one of the key issues surrounds the motive behind the list. However, the regulations borrow the relatively rare principle of a reversing burden of proof from discrimination law. This means that if the complainant can show facts that, in the absence of any other explanation, the tribunal could conclude there had been a breach, then the tribunal must do so unless the respondent convinces the tribunal otherwise. This means, for example, that if an individual can show that his name was on a prohibited list and he was refused employment despite being suitably qualified, then the tribunal must conclude that the refusal to employ was for a reason related to a blacklist unless the respondent can demonstrate a different reason.

Q What is the penalty for breaching the regulations?

A The amount of compensation an individual will receive for a successful complaint primarily depends upon the loss suffered, although there is the possibility of compensation for injury to feelings in some cases. Similar to other trade union-based complaints, there is a minimum level of £5,000 compensation that must normally be awarded in the employment tribunal where compensation is subject to the normal adjustments up and downwards. There are no maximum or minimum awards in the county court or Court of Session.

Simon Ost, partner, Hammonds

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