Eradicating trade union blacklists

New regulations came into force last month designed to stamp out blacklists against trade union members. Alfred Weiss examines what they say.

The Employment Relations Act 1999 (Blacklist) Regulations 2010 came into force on 2 March 2010. They address the mischief of “blacklists” of trade union members that may be used to discriminate against union members in employment.

Reg 3(1) provides that no person shall compile, use, sell or supply a prohibited list. By reg 3(2), a prohibited list is defined as a list which contains details of persons who are or have been members of trade unions or persons who are taking part or have taken part in the activities of trade unions, and is compiled with a view to being used by employers or employment agencies for the purposes of discrimination in relation to recruitment or in relation to the treatment of workers.

The phrase “compiled with a view to” suggests that to establish whether a list of trade union members is a prohibited list an examination of the motive of the person who wrote the list is required. Otherwise a list of members compiled for the purpose of for example, collecting subscriptions, might be a prohibited list.

Reg 5 establishes a person’s (P) right of complaint to an employment tribunal if another (R) refuses to employ P for a reason which relates to a prohibited list and either R contravenes regulation 3 in relation to that list, or R relies on information supplied by a person who contravenes that regulation in relation to that list, and knows or ought reasonably to know that the information relied on is supplied in contravention of that regulation.

An employer who does not possess a prohibited list can therefore still be caught by the regulations if they rely upon information provided by an employment agency and suspect that it comes from a prohibited list.

Reg 5(3) establishes a reverse burden of proof. If the are facts from which the tribunal could conclude, in the absence of any other explanation, that R contravened reg 3 or relied on information supplied in contravention of that regulation, the tribunal must conclude that such a contravention or reliance on information occurred unless R shows that it did not.

Reg 6 establishes a person’s (P) right of complaint to an employment tribunal against an employment agency (E) if E refuses P any of its services for a reason which relates to a prohibited list, and either E contravenes regulation 3 in relation to that list, or E relies on information supplied by a person who contravenes that regulation in relation to that list, and knows or ought reasonably to know that information relied on is supplied in contravention of that regulation. A reverse burden of proof applies.

Reg 2(1) defines employment agency as “a person who, for profit or not, provides services for the purposes of finding employment for workers or supplying employers with workers, and does not include a trade union by reason only of the services a trade union provides only for and in relation to its members”.

This definition of employment agency is different to that in section 13(2) of the Employment Agencies Act 1973 where it “means the business (whether or not carried on with a view to profit and whether or not carried on in conjunction with any other business) of providing services (whether by the provision of information or otherwise) for the purpose of finding [persons] employment with employers or of supplying employers with [persons] for employment by them”.

The use of the word “a person” in defining employment agency under reg 2(1) makes it arguable that reg 6 applies to individuals only, such as headhunters, as opposed to businesses, such as employment agencies.  However, it is hard to imagine that this is what the regulations intended.

Where a complaint under reg 5 or 6 is established, the tribunal may make an order for compensation. If it makes an order for compensation it shall be of not less than £5000 before any increase or reduction in compensation. Compensation shall be assessed on the same basis as damages for breach of statutory duty and may include compensation for injury to feelings. The total amount of compensation shall not exceed £65,300.

The tribunal may also make a recommendation that the respondent take within a specified period action appearing to the tribunal practicable for the purpose of obviating or reducing the adverse effect on the complainant of any conduct to which the complaint relates. This envisages situations where an order is made requiring the removal of a complainant’s name from a blacklist.

Reg 9 provides that a person (P) has a right of complaint to an employment tribunal against P’s employer (D) if D, by any act or any deliberate failure to act, subjects P to a detriment for a reason which relates to a prohibited list, and either D contravenes regulation 3 in relation to that list, or D relies on information supplied by a person who contravenes that regulation in relation to that list, and knows or ought reasonably to know that information relied on is supplied in contravention of that regulation. A reverse burden of proof applies. The use of the term “person” leaves open the question of whether the right of complaint applies not only to employees, but also to workers.

Where a complaint under reg 9 is established the tribunal may award compensation having regard to the act or failure complained of and any loss to the complainant attributable to the wrongdoer’s act or failure, subject to the duty to mitigate. An award of compensation under reg 9 shall not be less than £5000 before any increase or reduction in compensation, and shall not exceed £65,300.

The regulations permit trade unions to organise collective action against employers who subject their members to detriment, without fear of compromising any award of compensation under reg 9. Reg 11(9) provides that in determining the amount of compensation no account shall be taken of any pressure exercised on the wrongdoer by the calling, organising, procuring or financing a strike or other industrial action, or by threatening to do so.

Reg 12 adds a new section 104F to the Employment Rights Act 1996 establishing a new ground of automatically unfair dismissal, where the reason or the principal reason for the dismissal relates to a prohibited list and either the employer contravenes regulation 3 in relation to that prohibited list, or the employer relies on information supplied by a person who contravenes that regulation in relation to that list, and knows or ought reasonably to know that the information relied on is supplied in contravention of that regulation. A reverse burden of proof applies.

The minimum amount of the basic award of compensation for dismissal on such grounds, before any reduction, shall not be less than £5000.

A contravention of reg 3 is also actionable as a breach of statutory duty before the courts in respect of which orders restraining or preventing a contravention of regulation 3 may be made, and damages may be awarded including compensation for injury to feelings. It is possible to bring a claim in the courts seeking an order restraining or preventing a contravention of regulation 3, and also to make a complaint to the tribunal under regulation 5, 6 or 9, or for unfair dismissal.

Alfred Weiss is a barrister at Zenith Chambers in Leeds (www.zenithchambers.co.uk).