Blacklisting of union members outlawed from 2nd March

The Employment Relations Act 1999 (Blacklists) Regulations came into force on 2nd March 2010, (not the 6th April, as previously anticipated).

These Regulations prevent the use of blacklists to deny employment or dismiss employees as a result of their trade union membership or activities. Under the Regulations, the compilation, use, sale or supply of a list containing the details of persons who are or were trade union members, or are or were involved in trade union activities, is prohibited, if one of the list's purposes is to facilitate discrimination (i.e. less favourable treatment) by employers or employment agencies on the ground of trade union activities either on recruitment or during employment.

There are a number of exemptions from the Regulations. These include where a person does not know, and could not reasonably be expected to know, they are supplying a prohibited list; where a person's use or supply of a blacklist is in the public interest - for example, whistleblowers or journalists highlighting a company's use of a blacklist; or where the list is used or supplied in order to obtain legal advice on whether the Regulations have been breached.

A person may complain to an employment tribunal or court where he or she has, for a reason related to a blacklist, been refused employment or employment agency services, or has been subjected to a detriment. A tribunal may then award compensation and, in relation to refusal of employment or employment agency services, may make a recommendation to obviate or reduce the adverse effect suffered by the claimant. An employee who is dismissed for a reason relating to a blacklist may also claim unfair dismissal. In addition, a person may apply to the county court to prevent a breach of the Regulations.

For all these claims, once the claimant has shown facts from which the court or tribunal could conclude that the respondent has breached the Regulations, the burden of proof will be on the respondent to show otherwise.

A complaint about a blacklist must be made to a tribunal within three months of the conduct.

The Department for Business Innovation and Skills has published guidance on the Regulations and their application, but their application in the local government field is likely to be negligible.

Further information:
www.opsi.gov.uk

www.berr.gov.uk

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