Success at the Employment Appeal Tribunal - Trade Union Blacklisting

By way of background, during March 2010, the Employment Relations Act 1999 (Blacklists) Regulations 2010 came into force and introduced a new offence of "Blacklisting" Trade Union members and activists. This legislation was prompted by the Information Commissioner seizing a database a year earlier, which contained details of the Trade Union activities for over 3,000 workers in the construction industry (a list had been used by over 40 different companies as a way of vetting potential staff!).

The Regulations prohibit any organisation from compiling, using, selling or supplying a "Prohibited List" (subject to a couple of exemptions). In turn, a Prohibited List is one 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 activities of Trade Unions. Fundamentally, any Prohibited List must also be compiled with a view to being used by employers or employing agencies for the purposes of discrimination in relation to the recruitment or the treatment of workers. The Regulations therefore cover a wide range of scenarios and can prevent organisations, as a result of a Prohibited List, from:

refusing to employ an individual or engage them as an agency worker;

subjecting an individual to any detriment whilst employed; and

dismissing an existing employee.

Where such a Tribunal claim is successful, any award arising from a breach of the Regulations must be at least £5,000 (before any deductions) and may not currently exceed £72,300 where a dismissal has been involved (the cap does not apply for other forms of detriment). Also, except in cases involving allegations of unfair dismissal, a Tribunal may award an additional sum for "injury to feelings", which can amount to a substantial sum.

BPE’s client faced Tribunal claims raised by three job applicants (two of which had been Shop Stewards for other organisations on a number of occasions), who all alleged there had been a breach of the Regulations because of a belief that they had not been offered a job simply because of their Trade Union activities over the years. Whilst these claims ultimately failed, our client was forced to go through a 7-day Tribunal Hearing in order to clear its name. Notwithstanding this, the three Claimants appealed the Tribunal’s decision earlier this year.

The EAT’s Judgment, which was released last week, supported the Tribunal’s original conclusion that there had been no discrimination. Matthew, who has represented our client in this claim since it began in 2010, believes that one of the EAT’s key findings was that an employer can, in certain circumstances, refuse to be dictated to about whom to employ without breaking Trade Union membership discrimination laws.

In this case the employer’s business was highly unionised. As a result, a full-time trade union official "asked" the employer to recruit three named employees with a view to them acting as Shop Stewards. However, the Tribunal believed that the official's approach annoyed the employer who regarded them as having a combative manner, which in turn led to it declining to recruit the individuals concerned. Fundamentally, the EAT agreed that, as a fact, the lack of recruitment was because the employer resented being bullied by the Union and it did not wish to be dictated to about whom to employ. Due to this motivation the employer had not refused to employ the individuals because of their trade union membership.

Naturally, the outcome of this kind of allegation will depend entirely on the assessment of the evidence in each particular case. In fact the EAT stated that it would expect this kind of employer's explanation to be scrutinised narrowly. But on this occasion the employer passed the test!

Overall, the above case adds to BPE’s existing experience of dealing with Trade Union related issues. In addition to now having dealt with the application of the Regulations on a first-hand basis, BPE has significant experience in negotiating national agreements with Trade Unions and dealing with strike action for significant clients.

Should you have any queries regarding this case or any other matter, please feel free to contact BPE’s Employment Team employment@bpe.co.uk

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.