When some of the UK’s biggest construction firms were revealed last year as subscribers to a covert database containing sensitive personal information on thousands of building workers the outcry was immense, and led to the introduction of new laws banning blacklisting. But they don’t go far enough to ensure the practice is wiped out once and for all, argues Dave Smith, who was one of the safety reps on the list.
I remember the very day when I realised that campaigning for better workplace health and safety was going to become an important part of my life. It was the morning of 23 February 1998 and I was working on a construction project in London to extend the Docklands Light Railway from the Isle of Dogs under the Thames to Greenwich.
That morning, there had been an explosion in the tunnel that resulted in a 22m wide x 7m deep crater in the playing fields of George Green School. When I arrived for the start of my shift, lumps of earth the size of a small car were stuck five storeys up on the outside of a block of flats, 100 metres away! If the explosion had occurred during school playtime it would have been a tragedy.
From that point on, I volunteered to become a union safety rep and, a few days later, I was elected at a packed meeting in the site canteen.
Construction has a well-documented history of injuries and fatalities. If worker engagement on safety issues is needed anywhere, it is in the building industry. But from the day I became a safety rep with the construction union UCATT, major construction companies started taking a keen interest in my activities – unfortunately, for all the wrong reasons.
A covert file was being compiled about my union safety activities, with information being supplied by senior managers of virtually every new building site I worked on. The information in my personal file was shared among the major contractors as part of a centralised blacklist, with the intention of denying me employment, or removing me from building sites where I had already started work.
Before you start thinking that I am some kind of paranoid conspiracy theorist, let me make it crystal clear that I make these allegations with absolute certainty because I now have a copy of my 36-page personal blacklist file in my possession. Every allegation I make in this article is fully backed up by documentary evidence.
A major disgrace
For anyone not familiar with the current blacklisting scandal, the story goes as follows: in February 2009, the Information Commissioner’s Office (ICO) raided the Midlands premises of an organisation called the Consulting Association and discovered a paper and card-based intelligence database containing personal sensitive details of more than 3000 construction workers, including their names, addresses, employment histories and union membership details.
The ICO also found invoices to 44 major construction firms who paid the Consulting Association an annual subscription fee to coordinate the sharing of the personal data. In addition, the companies paid £2.20 every time they checked a prospective employee against names held on the database. If workers’ names matched those found on the blacklist, they were refused employment. Between April 2006 and February 2009, the construction companies paid, in total, more than £450,000 to use the service.
Many of the largest blacklist files are on safety reps from the Unite and UCATT unions. The files contain pages of entries attributed to senior managers, including: an article about asbestos written in a union magazine, union safety leaflets, a copy of a safety rep’s CV, and entries relating to safety reps raising concerns about reportable accidents and poor toilets and welfare facilities. In one file, a safety rep’s credentials appear with a company office stamp on the document. Other files specifically discuss the methods used to dismiss safety reps from building sites. Some of the safety reps blacklisted by the building employers are current or previous members of IOSH – including myself.
The companies identified by the ICO as involved in the Consulting Association blacklisting were not small, fly-by-night cowboy building firms but major multinationals, including Kier, Costain, Carillion, Laing O’Rourke, Sir Robert McAlpine and Vinci. The ICO has issued enforcement notices against some of these major contractors – six against Balfour Beatty and its subsidiaries.
In 2008, Scandinavian giant Skanska was invoiced £28,122.60 on top of a £3000 annual subscription. Skanska has since carried out a three-month internal investigation. Harvey Francis, executive vice-president, has conceded that Skanska subscribed to the Consulting Association, and that “a small amount of coordination” took place among up to 30 managers.
Skanska justifies the use of the blacklist as a method of vetting employees for a history of violence, and drug or alcohol abuse. In November 2009, Francis told People Management magazine: “Health and safety in construction is of paramount importance. While I’m not excusing [using the blacklist], this was also a way of trying to keep the sites safe.”
Quite how a covert blacklisting conspiracy lasting decades and specifically targeting union safety reps improves safety on building sites is not made clear. The victimisation of building workers prepared to raise concerns about safety not only causes unemployment and financial hardship for the individual concerned it sends out a message to all workers on site. If even union safety reps, supposedly protected by legislation, can be dismissed and find it difficult to find future employment, the result is that the rest of the workforce becomes reticent to complain about safety issues, in case they, too, lose their jobs. In an industry as dangerous as construction, workers being afraid to voice concerns has a direct impact on the fatality and accident figures.
I’m almost certain that the practice does not appear in the Skanska Safety Policy. The union magazine Hazards and researchers at Stirling University carried out a survey of workers who have obtained copies of their own blacklist file, and not a single file had any entries about drug or alcohol misuse. On the other hand, every one of the files had references to union membership, and the vast majority had safety-related entries (including information supplied by Skanska).
Thus far, however, no disciplinary action has been taken against any of the 30 managers involved with the blacklisting. Skanska appears to have a clear conscience, even if blacklisting campaigners are more sceptical.
Let’s be honest: blacklists do not compile themselves. The information was gathered and sent to the Consulting Association by senior managers of blue-chip companies. Internal Consulting Association papers reveal it was not just used by the construction giants – it was “owned” and run by them. The documentation spells out that the association was managed by a chairman, chief executive and finance committee from the industry.
As well as causing personal detriment to thousands of individuals, this raises many questions about business ethics. I repeat the fact that the Consulting Association only ceased trading in 2009 when its offices were raided; otherwise its operations and the involvement of multinational construction firms would be continuing today.
Legal response
Astonishing as it may seem, it was not actually against the law to operate a blacklist in the UK. The Employment Relations Act 1999 (Blacklists) Regulations 2010, which outlaw blacklisting of trade unionists, were only introduced in March this year. The process to get them on to the statute book was passed relatively quickly because the regulations were originally drafted in 1999 but not implemented because of lobbying by employers’ associations during the 2003 consultation process.
In summary, the new Regulations:
While the Regulations are a welcome step forward, they fall a long way short of what unions, academics and campaigners have been arguing for. One of the UK’s leading human-rights experts, Professor Keith Ewing, of Kings College London, and author of Ruined lives: blacklisting in the UK construction industry, says: “The blacklisting of construction workers because of their trade-union activities is a vile practice, which the current government has, to its eternal shame, done next to nothing to eradicate, and even less to compensate the victims.”
Professor Ewing identifies the following shortcomings in the Regulations:
The limited scope of the Regulations leaves grave doubts as to whether workers who refused to work in unsafe conditions, or who attended informal protests about safety issues, would be protected by them.
Employment tribunals
Since the ICO raid, blacklisted workers have been able to apply and gain copies of their own file. The files provide prima-facie evidence of deliberate, vindictive victimisation and have resulted in a rash of Employment Tribunal claims. There are currently live ET claims relating to blacklisting against such household names as Balfour Beatty, Costain, Kier, John Mowlem, Laing O’Rourke, Carillion, Skanska, Sir Robert McAlpine, Vinci, Bam Nuttall, Morgan Est, AMEY, AMEC, CB&I, Taylor Wimpey, and Wilmott Dixon, among others.
Given the almost unprecedented nature of the cases, Lord Justice Latham (president of the Employment Tribunal) has ordered that all claims are heard together in Manchester ET. The vast majority of cases are still at very early stages of the legal process and are expected to last some time.
However, in March 2010, Dooley v Balfour Beatty became the first full-merits Employment Tribunal judgement, finding in favour of the company. This was despite documentary evidence showing that Balfour Beatty had supplied information to the blacklist database shown to the Tribunal (which the judge, Mr B T Charlton, described as “ghastly” in court). The blacklisting evidence was not disputed by Balfour Beatty, as it was the company itself that provided the blacklist file as part of its bundle of documents, arguing that the information on the file was justification for a dismissal in the early 1990s!
The decision turned on the question of employee status and found that Mr Dooley (an ex-bricklayer, now a UCATT full-time official) was not an employee of Balfour Beatty, and only “employees” are covered by the legislation. In an industry where sub-contracting and agency labour is widespread, I would argue that this effectively allows the major multinationals to dismiss and blacklist workers who complain about safety with impunity, as almost all labour is sub-contracted out.
This is why many of the Employment Tribunal cases are now attempting to use the European Convention on Human Rights to fight their claims. Article 11 of the ECHR grants “everyone the right to Freedom of Association and Assembly with others, including the right to form and to join trade unions for the protection of his interests”.
ECHR rights are given effect in UK law by the Human Rights Act 1998, which places a duty and positive obligation on Tribunals to ensure that any existing UK legislation must be interpreted in a way that is compatible with the protection of Convention rights. If Tribunal judgements find that the human rights of blacklisted workers have been breached but they are not protected solely because of their employment status, a huge new legal battle will open up. In addition, there are reports in the construction press of a High Court action under the Data Protection Act being prepared.
Where was the regulator?
The role of the Health and Safety Executive in the blacklisting scandal also needs to be examined. If union safety reps have been systematically victimised and dismissed over many years, what has the HSE done about it?
Unions, as a matter of course, report dismissals of safety reps to the HSE. On a purely personal basis, I contacted the local HSE inspector whenever I felt I had been dismissed from building sites for carrying out my role as a safety rep. I was told repeatedly that my dismissal was an “industrial-relations issue” and that the HSE could not get involved. Anecdotally, I know of many other safety reps and union officers who received the same response.
At a recent South East Region TUC safety conference, HSE chair Judith Hackitt was the keynote speaker and, in response to a question about blacklisting, stated that “victimisation of safety reps is a safety issue that HSE takes very seriously”. I can only hope that this turns out to be the case. Worker involvement schemes are only likely to succeed if the HSE is prepared to use its considerable powers to provide protection for workers prepared to speak up on behalf of their colleagues and raise issues that, in a time of recession, their employer would perhaps rather not hear about.
Unfortunately, a search of the HSE enforcement database suggests Hackitt’s reassurance has little basis in fact. Although the HSE Enforcement Management Model establishes several clear instances in which enforcement action should be taken by inspectors where they find breaches of the Safety Representatives and Safety Committees Regulations, action is exceedingly rare, and none at all has been taken in the last four years.
Conclusion
I will leave the last word to Jim Lafferty (a blacklisted electrician and former Amicus – now Unite – safety rep), spokesperson for the newly-formed Blacklist Support Group: “If the blacklisting companies had any sense of decency or corporate responsibility, they would come clean, offer an apology, and make financial recompense to those workers who have suffered over many years.
“But this is not about being a victim. This is about ensuring justice for those honest building workers who raised genuine concerns about safety. This is about multinational companies not being above the law. This is about equality and fairness: human rights for trade-union members.”
Dave Smith is a lecturer in trade-union studies and is actively involved with the Blacklist Support Group.
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A very interesting commentary Mr. Smith.
I vividly recall a time when the then IISO (now IOSH) members revelled in decrying Trade Union Appointed Safety Reps.
Congratulations to the Practitioner for publishing this viewpoint.
Massimo Verdi