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Home > English > Alternatives International Journal > 2012 > September 2012 > Justice on the Horizon for Blacklisted Workers

Justice on the Horizon for Blacklisted Workers

Monday 3 September 2012, by Jillian Ward

Recent developments in a British blacklisting scandal may finally bring justice to UK construction workers. The shocking series of events began in 2009 with the discovery of a database on workers which effectively restricted the listed individuals from employment in the construction industry. This summer has seen the victims’ most successful retaliatory campaign yet; a high court claim in June against construction giant Sir Robert McAlpine, a former subscriber to the database, may amount to £600 million in payouts. The UK civil rights organization Liberty is now demanding the prosecution of all firms who participated in the database and urging the British Information Commissioner Office (ICO) to make the blacklist public.

Rumors of a blacklist of "troublesome" employees have circulated the British construction industry for decades. They were confirmed in 2009 when the ICO raided the offices of the Consulting Association, a Droitwich-based organization which maintained a database on over 3,000 workers. The database contained records mostly on trade unionists or people who had raised concerns about pay, health or safety with their employer. Individuals’ files contained information concerning their physical description, their family and relationships, and their presence at union meetings and in left-wing newspapers.

The owner of the Consulting Association, Ian Kerr, was charged for violating data protection laws and fined £5,000 upon the discovery of the unlawful information. Details of what the database contained emerged on a case-by-case basis as individuals who thought they might have been blacklisted investigated their situation. In March 2012, only 600 of the 3,200 names on the blacklist had asked the ICO for a copy of their file.

Health and safety critics were especially targeted, such as engineer Dave Smith whose case proved an important turning point in the scandal. Smith’s earnings dropped from £36,000 in 1999 to £12,000 in 2001, forcing him to leave the industry in a time of economic prosperity and demand for skilled workers. The events led him to question whether he had been blacklisted, and after the ICO raid he sought the recovery of his own personal file and an employment tribunal against construction giant Carillion.

His file, released by the ICO, totals thirty six pages. In an interview with Hazards Magazine, Smith said his entire file "relates to safety," containing "page after page of concerns about asbestos, near fatal accidents, [and] god awful toilet facilities." Smith lost his claim for compensation because he was an agency worker not directly employed by Carillion. Smith’s tribunal, although unsuccessful, revealed police and MI5 involvement in the blacklisting. In an interview about Smith’s case with the Observer, investigations manager at the ICO David Clancy said that "there is information on the Consulting files that I believe could only be supplied by the police or the security services."

According to Clancy, communication between the Consulting Association and police and security services probably began in the 1990s. At this time Ian Kerr operated a similar organization called the "Economic League" which was shut down in 1993. Clancy speculates that the state began liaising with Kerr to gather information on Irish construction workers in fear of Irish Republican Army (IRA) terrorism. Furthermore, many blacklisted workers say they were included in the database because they pointed out health and safety concerns in the workplace, which they say are bypassed by companies to increase profits. MP John McDonnel describes this situation as a "collusion between police, security services and companies" that demonstrates the "ability of companies to exploit workers and destroy anybody who stands up against them."

In the three years since the blacklist was discovered, only three people have won their claims at full employment tribunals. However, the past few months have witnessed unforeseen progress for blacklisted workers with the help of bodies such as the Blacklist Support Group (BSG). With the support of BSG, 86 of the 3,400 workers in the database launched a high court claim this July against Sir Robert McAlpine, the Tory donor and builder of the Olympic Stadium, for "tort of unlawful conspiracy." The workers are being represented by Queen’s Counsel Hugh Tomlinson, barrister for the victims of the phone-hacking scandal which closed down the News of the World. The initial claim for loss of earnings and damages is expected at £17 million, but many other victims are expected to add their names to the claim, raising the value of payouts to an estimated £600 million.

The information accumulated for the Sir Robert McAlpine case, including files recovered from the Consulting Association in 2009, could go towards a civil claim against the police and MI5 for their potential involvement with the blacklisting. The victims are also compiling a complaint to the Independent Police Complaints Commission about collusion with the Consulting Association.

In light of this summer’s legal action, the British trade union GMB alongside London-based civil rights group Liberty are calling for the Information Commissioner Office to launch a broad investigation into the blacklist. In an interview with Union News last week, Liberty’s legal officer Corinna Ferguson outlined ideas for an investigation into the blacklisting. She points out that since the minor legal action taken against Ian Kerr in 2009, there has been little prosecution of the companies who used and contributed to the blacklist. The only companies punished were those who admitted their involvement; their penalty was to stop the unlawful behaviour in the future. Ferguson believes separate investigations into those companies’ practices is "the first thing [...] the Information Commissioner could do" since "there is at the very least an arguable case that they breached the data protection act in a serious way."

Both Liberty and GMB Union are also pushing for the blacklist to be rendered public. This August, Liberty sent a letter to Information Commissioner Sir Christopher Graham, whom it understand holds a complete copy of the database, urging him to make it accessible to those included in it. The letter calls upon Graham to use his Data Protection and Human Rights Acts powers that have been disregarded since the beginning of the scandal. Chris Benson, a Partner in the law firm Leigh Day & Co who is coordinating GMB Union’s legal actions, thinks the "information commissioner should be far more proactive and make people aware their names have been included in this list rather than wait for victims to contact them." Since the ICO "has the information at their disposal," it should be their responsibility to "ensure that those who may have been out of work for many years [...] are told about their inclusion on this list and be enabled to do something about it." According to Corinna Ferguson, Liberty will consider launching a judicial review at the high court in London to get the files opened up if they cannot persuade the Commissioner to do so. The Information Commissioner’s Office said it has received Liberty’s letter and will respond in due course.

Prospective legal action by Liberty and GMB Union could remunerate the victims of blacklisting and penalize the contributors and users of the database. The cooperation of the Information Commissioner, however, is essential to this process and awaits to be seen.