Blacklisting of trade unionists by London’s Crossrail project is as unacceptable as Vince Cable declares. But his outrage and pledge to “bring the full force of the law” to bear on companies found to be operating such restrictive practices rings hollow when you consider how weak the law is in this area.
Regulations, which Labour finally implemented in 2010 after failing to do so when the Employment Relations Act 1999 became law, do not provide effective legal protection and remedies for workers.
They make it unlawful to make or use a blacklist to refuse employment or subject an employee to detriment, but this does not prohibit illegitimate use of a list which was originally compiled “lawfully” – perhaps for a different purpose.
We lack a system of effective complaint in terms of each potential category of abuse – from the supply of information which may be used to compile a blacklist, to the ultimate use of a blacklist by an employer.
And the regulations still require individuals to pursue claims, rather than allowing a trade union to do so on behalf of groups and members.
What makes blacklisting so objectionable is the publication of an association between an individual and trade union membership or activities. By requiring individuals to take a claim, this will simply be perpetuated.
In 2009, when the Labour government consulted on implementing s3 ERA 1999, we told the then business secretary Peter Mandelson that employers and consultants who blacklist trade unionists should face the full weight of the criminal law including the ultimate sanction of imprisonment.
Blacklisting is planned, covert and systematic. Civil law sanctions such as fines are wholly inadequate and send entirely the wrong message to potential law breakers.
We know from the Consulting Association case that referral to the Information Commissioner, as Cable is said to be doing with Crossrail, will achieve little. Without an appropriate enforcement authority, fully equipped with the necessary powers and resources, anti-union employers will continue to exploit the weaknesses in the laws to prevent trade unionists exercising their legitimate rights without fear of losing their livelihoods.
Read more about the blacklisting at Crossrail in this week’s LELR weekly.