Blacklisting union members? |
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| Management | |
| Written by Sharokh Koussari is a Partner at Howard Kennedy | |
| Tuesday, 11 August 2009 | |
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The government is moving to ensure any covert discrimination of unionised workers is stamped out. The new consultation paper issued by the Department of Business Innovation and Skills is making a number of proposals in order to deal with the issue of “blacklisting” against applicants because they engage in trade union activity. This legislation was triggered as a result of the discovery earlier in the year of a company by the name of The Consulting Association (the “TCA”) having been involved in providing over 40 construction companies with information concerning potential job applicants’ involvement with trade unions.There is existing legislation which protect worker’s rights to engage in trade union activity generally. This includes the Trade Union Relations (Consolidation) Act 1992 which make it unlawful to refuse employment or to penalise the worker on the grounds of trade union membership. This legislation entitles the employees to bring proceedings against the employer in the employment tribunal and with no criminal sanctions. There are also provisions under the Employment rights Act 1996 against victimisation of trade union members. Further, the Data Protection Act 1998 which classifies union membership as “sensitive personal data” would make it unlawful for a “blacklist” to be operated bearing in mind that there would be no explicit consent in this case., In the meantime, the Employment Relations Act 1999 allows the government to introduce regulations to specifically legislate against the blacklisting of trade unionists. Whilst there was a consultation in 2003 and a draft note of regulations was prepared, it was felt that it was not necessary to implement new regulations. This situation changed as a result of the discovery earlier this year of the activities of the Consulting Association referred to above. It was felt that the Government needed to act rapidly to introduce new regulations specifically catering for the issue of “ blacklisting “. The current Consultation paper contains a number of questions and attaches a copy of draft regulations prepared in 2003. These regulations were already quite intricate and dealt with many aspects of this matter. The Government revised the regulations already prepared in 2003 to ensure they fully cover the methods used by the TCA. DefinitionThe regulations use the meaning given by the 1999 Act to the words “ prohibited list; i.e a list which contains details if members of Trade Union or persons who have taken part in the activities of trade unions and are complied with a view to be used by employers or employment agencies for the purpose of discrimination in relation to the recruitment or in relation to the treatment of workers. “ The Government recognises that it cannot go beyond that definition. However, to ensure that interpretation is made easier, the regulation will give for various clarifications .The consultation paper asks if the new regulations cover all the possible ways including the use of the internet or other electronic media and the impact of the TCA case. The discovery of the TCA case exposed a number of weaknesses in the initial draft regulations which the government has sought to redress: • They only dealt with the situation where lists are drawn up centrally and then sent to the users to check the names against the list. • In the TCA case, the compilation of the list and the checking of the names against the list were all done centrally. ExceptionsAlso, the draft regulations contain a list of various exempted activities such as those of distributors of list eg. the Royal Mail, reporting of breaches of the regulations in the public interest, employment of trade union experts and those that compile list for legal process and legal purposes. The consultation paper asks if there should be other exemptions and whether those consulted agree with the drafting of the exemptions in their current forms. EnforcementIn this regard, the draft regulations recognise that it will be the role of the Information Commissioner to investigate any breaches. It also confirms that as in most cases, the “blacklists” are operated covertly. Therefore, the obvious recourse for the government would be to prosecute using the 1998 Data Protection Act. This means that enforcement under the regulation would take the form proceedings in the employment tribunal. The regulations also allow the applicant or the responding employer to join the compiler or distributor of lists to tribunal proceedings. The consultation paper asks whether the civil courts are the correct forum for enforcement. ProcedureThe time limits suggested by the existing draft are 3 months after the date of the conduct to which the complaint relates with an exception that if it was not reasonably practicable to issue proceedings within that period the tribunal could extend this time limit. In view of the covert nature of blacklists, the tribunals will be encouraged to use their discretion to extend the 3 months time period. ConclusionThe existence of the draft 2003 regulations meant that the government could act very rapidly in preparing the new draft and submit them to consultation. Clearly it is imperative that the government passes these regulation to specifically deals with 'blacklisting'. However as with many draft legislation there are difficult issues raised which are not covered by their ambit. For example the regulations are only UK wide which means that a compiler based abroad could not be affected although the user of the data provided by that compiler could be caught by the regulation, further the regulations require a need to show detriment and that has raised concerns amongst some. It is important that these issues are fully canvassed at this stage to ensure that all possible eventualities are catered for in a practical manner and without inadvertently legislating against harmless activities.
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