Can workers be blacklisted for their membership of trade unions?

Blacklisting

What is meant by blacklisting?

The process of blacklisting occurs in the employment sector where employers make a decision that they do not wish to employ anyone who is a member of a trade union. Blacklisting is not simply in relation to trade union membership, there can be other factors involved, but the most common factor is due to trade union membership.

Why would employers not wish to employ individuals who are members of trade unions?

Employers may not wish to employ individuals who are members of trade unions as they may believe that some of their employment practices may come more under the microscope and they may be more liable to industrial action.

How can companies become aware of potential employees’ membership of trade unions?

Often employers will ask potential employees to go through a vetting scheme whereby they ask questions prior to interviews. Some of these questions can relate to membership of trade unions. Often if it is found that an individual is a member of a trade union then they will blacklist them from employment with that company.

The most common way, however, in which employers will become aware of potential employees’ membership of trade unions, is through individuals accessing databases providing details of trade union membership and then selling these on to companies.

What does the law say about this?

In the wake of recent evidence concerning the blacklisting of workers the UK Government has made a decision to strengthen the law in this area.

Under what grounds can the UK Government strengthen the law in this area?

The UK Government has powers to strengthen the law in this area provided to it under the Employment Relations Act 1999.

What has this resulted in?

This has resulting in the Employment Relations Act 1999 (Blacklist) Regulations 2010 coming into force on 2 March 2010. The regulations have been designed to build on existing protections in the area which can be found in certain aspects of trade union and data protection law.

What is the main effect of the Regulations?

Under the Regulations it is now illegal to discriminate in relation to the employment of an individual simply because of their current or prior membership of a trade union.

What types of discrimination is now illegal under the Regulations?

Furthermore the introduction of the Regulations brings about the following changes in the law:

  • Making it unlawful for organisations to refuse employment to or to sack any individuals because they appear on a blacklist
  • Making it unlawful for employment agencies to refuse to provide a service on the basis that an individual appears on a blacklist

What else do the Regulations do?

Under the Regulations it is also now unlawful to compile, use, sell, or supply blacklists containing details of people who are, or were, trade union members, or who are taking part, or have taken part, in trade union activities, where the blacklist may be used by employers to discriminate in relation to the recruitment or treatment of existing workers.

What will happen if an individual or a company is found to be in breach of the Regulations?

If an individual or company is found to be in breach of the Regulations then the UK Courts will have the ability to award damages which can include damages for injury to feelings.

What was the position before the Regulations were introduced?

Prior to the Regulations being introduced if individuals were found to have done these kinds of acts then a combination of trade union and data protection law was used.

For example in March 2009 there was strong evidence to show that the construction industry had been illegally vetting employees. In this case the Information Commissioner reported that 40 different companies had subscribed to a particular database which was used to vet construction workers.

The database was closed under data protection law and the individual who operated the database was convicted on criminal charges under data protection law.

With the already existing law and the new powers introduced in 2010 members of trade unions are provided with much more protection in relation to the potential of blacklisting by employers.