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30th July 2009

Prohibiting Trade Union Blacklisting: Will it Work?

By Ian Manborde, Thompsons Tutor in Trade Union Studies, Northern College

The recent exposure of construction firms who were using the services of the Consulting Association to blacklist trade unionists from employment was one of the catalysts for the introduction of new legislation to prohibit this activity.

On 7 July the newly formed Department for Business, Innovation and Skills (BIS) opened a short consultation period on the proposed Employment Relations Act 1999 (Blacklists) Regulations 2009.

In the opening statement of the consultation, Peter Mandelson states that:“It is a matter of principle for the government that individuals who step forward into these responsible, and sometimes difficult, roles should not be punished or victimised as a result”.

The remit of the consultation includes:

• Defining a blacklist of trade unionists and prohibiting the compilation, dissemination and use of such blacklists
• making it unlawful for organisations to refuse employment, to dismiss an employee or otherwise cause detriment to a worker for a reason related to a blacklist
• making it unlawful for an employment agency to refuse a service to a worker for a reason related to a blacklist
• providing for the employment tribunal to hear complaints about alleged breaches and award remedies based on existing trade union law
• to allow the courts to hear complaints from anyone to the effect that they have suffered loss or potential loss because of a prohibited blacklisting activity.

Whilst the regulations are welcome, a key concern will be the degree to which they will actually impact on the often highly informal, but damaging, on-going practices that limit and diminish the working lives of a proportion of those who become trade union activists.

Formal blacklisting to deny employment is difficult to prove. This is even more the case for trade unionists in work who have often found it difficult to prove that their mistreatment is on grounds of victimisation for carrying out trade union duties.

The new regulations should help, however, in demonstrating to employers the legitimacy of trade union membership and activism and reinforcing the existing legislation that protects reps from victimisation.

For a copy of the consultation (which ends on 18 August), go to:
www.berr.gov.uk/consultations/page52145.html