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UK – Agency worker loses blacklisting trial

25 January 2012

An agency worker has lost his case against a firm that blacklisted him for raising concerns over health and safety issues and for his active participation in a union. The Central London Employment Tribunal ruled that the construction engineer Dave Smith was not entitled to legal protection against blacklisting because he was employed through a temporary agency. The court ruling comes even though Carillion, the firm who hired Mr Smith as a temporary worker, admitted that their managers had used a blacklist with private information about him. 

The Tribunal found that Mr Smith could not win the case against the company as he was not a direct employee. Mr Smith is now expected to appeal and go to the European Court of Human Rights to challenge the court ruling.  

It is believed that this was the first employment tribunal where a barrister used Human Rights legislation to try and persuade the tribunal that existing legislation should be interpreted in such a way that it would uphold human rights and thereby create new case law. A decision in favour of the claimant would have made it easier for agency workers to bring claims calling for employment laws to be read compatibly with the European Convention.

Although the Tribunal has yet to publish its decision, Alison Clements, Senior Associate at law firm Lewis Silkin, told Staffing Industry Analysts “The case appears to confirm a loophole in worker protection, perhaps surprising to the public, when the business using a worker is not the worker’s actual employer.” 

Blacklisting workers in the construction industry had been a widespread practice and first came to light in 2009. An organisation called the Consulting Association maintained the blacklist which contained Mr Smith’s private information, including  a photograph, address, national insurance number, work history, car registration, information about his family, and pages of documentation outlining his union activity. It has even been alleged that the company had spied on Mr Smith by attending his union meetings and gathering information on Smith's activities outside work. In 2009, the Consulting Association was prosecuted under data protection laws for its activities but was only fined £5,000 Pounds – the maximum which the magistrates court was allowed to impose.

Speaking after the court decision Mr Smith 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.”

Labour MP John McDonnell commented on the practice of blacklisting in the British staffing industry as “truly shocking” and is now calling for an open public investigation. “[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.”

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