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January 23, 2012

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Tribunal rules against worker blacklisted for raising health and safety concerns

A construction worker who lost a case against a major firm that admitted blacklisting him for union activities and raising health and safety concerns may go to the European Court of Human Rights, arguing that UK law does not sufficiently protect agency workers.
Sitting on 20 January, the Central London Employment Tribunal ruled against Dave Smith, 46, who had worked in the past through an employment agency for respondents in the hearing, Carillion (JM) Ltd and Schal International Ltd (a wholly-owned subsidiary of Carillion). Despite the fact that the companies agreed, before the hearing, a joint statement of facts with Mr Smith, in which they stated that they had blacklisted him, the Tribunal found that because Mr Smith was not a direct employee of the companies, he could not win the case.
The extent of blacklisting of workers in the construction industry by some of its major players came to light in early 2009, following a raid by the Information Commissioner’s Office on a West Midlands-based firm called The Consulting Association. The firm charged construction employers to subscribe to its database containing the personal details of ‘’troublesome” workers.
At the Tribunal last week, Carillion (JM) Ltd, Schal International Ltd and Tarmac Construction (a forerunner of Carillion), agreed that their managers had supplied information about Mr Smith to the Consulting Association. A secret blacklist file collated by the Consulting Association and presented to the court contained Mr Smith’s photograph, address, National Insurance number, car registration, union credentials, and information on his family. It also contained details of occasions on which he had raised concerns about poor toilet facilities and asbestos on building sites.
For his part, Mr Smith agreed that he was not a direct employee of any of the respondent companies but worked via employment agencies. It is on this technicality that the Tribunal ruled against Mr Smith. The Tribunal has yet to publish its decision, which will shed more light on the exact bases on which it was reached, but as there were no written contracts between the three parties in the employment relationship – Mr Smith, Carillion, and the employment agency – the crux of the matter is whether or not Mr Smith was an employee, and therefore could be protected.
SHP understands that, should the Tribunal decision reveal that he lost categorically on this point, Mr Smith is likely to take his case to the European Court of Human Rights, where the rights of all workers are equally protected.
Speaking after the decision outside the court, he said: “The blacklisting conspiracy is a deliberate breach of human rights by big business. Human rights are supposed to apply to everyone but Carillion and their subsidiaries have got away with systematic abuse of power simply because I was an agency worker. If the British justice system does not protect workers’ rights then we will be taking our case to Strasbourg.”
The number of temporary and contract staff in the workplace in general has soared as a result of the economic downturn, with figures from the Office for National Statistics showing that self-employment hit a record high of 4.14 million in autumn 2011. According to agency body the Recruitment and Employment Confederation, the market for temporary workers is now more robust than that for permanent, full-time hires.
Its head of policy, Gillian Econopouly, said: “This will have implications, for employers workers, and for Government policy. One major challenge is to provide independent freelancers and contractors with some form of support network.”
During the Tribunal hearing, it also emerged that information was supplied to the Consulting Association on professionals operating in other industries. Giving evidence, Dave Clancy, investigations manager at the Information Commissioner’s Office and the man who led the raid on the company’s offices, said: “There is information on the Consulting Association files that I believe could only be supplied by the Police or the security services.”
He told the court that blacklist files on elected politicians, journalists, academics and lawyers had been found.
These revelations were described by Labour MP John McDonnell as “truly shocking” and worthy of a “detailed and open public investigation”. He added: “[This] scandal is one of the worst cases of organised human-rights abuse ever in the UK.  I am calling upon the Government to launch a public inquiry into the full extent and impact on people’s lives of blacklisting.”
In November 2010, an employment tribunal awarded Unite member Phil Willis more than £18,000 in damages after ruling that he had been blacklisted by construction firm CB&I for his union activities.

A group of around 100 blacklisted workers is currently compiling a ‘class action’ to be brought in the High Court in the next few months.

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10 years ago

Unfortunately its not only the building industry that has a blacklist as stated there are files on people in several industries that are suffering this blatent invasion of not only their working lives but also that of family and friends, there should be an immediate inquiry by this so called caring government and any accomplices in this hung out to dry.
Good luck dave we are all with you

10 years ago

Thanks Darren & Kellee for your kind words.
I raised concerns about asbestos & poor toilet facilities: this information was forwarded to the blacklist by managers from the building firms. My union safety reps credentials were actually copied and sent to my blacklist file, with the Schal office stamp!!
The Consulting Association constitution showed that representation was at Director level. Invoices show that Carillion were still attending meetings in 2008.
We’re still fighting for justice.

10 years ago

I cannot believe that in today’s society there is still not equal protection for ALL workers…in the UK.
The British government needs to wake up and get in line with the rest of Europe.
Why is it that all to often British citizens end up taking their case to Strasbourg, where more often than not they usually win.
What kind of message does that send out to other countries? The British government will do what they can to save money, at the expense of workers safety.
Good luck to Mr Smith.

10 years ago

I’m really rooting for Dave Smith, and I agree that this case should be taken to the European courts. What a travesty!
It’s disgraceful that this kind of thing should be allowed, let alone condoned, which, in effect, is what the British courts are saying with this judgment.

10 years ago

I appalled that raising health and safety concerns got this poor guy on a “blacklist” how is this list even legal? Holding information about families etc, that is disgusting and unjust, and unnecessary. Agency worker or not, they are a person, an employee of some company doing a job. They should be protected. Good luck to Mr Smith and others out there like him.

10 years ago

No problem Dave. fact is i cannot understand the courts decision given the workplace health and safety regs, the managing health and safety at work, clearly state to raise health and safety concerns. I am lost for words. keep us updated and best of luck.

10 years ago

Sometimes the law is still an ass. It should make no difference if the person who has been blacklisted is an employee or an agency worker. As for the company, and all those other companies who sigend up to this insidious practice – shame on them. The next time someone mentions Corporate Social Responsibility I will reach for my gun…