Thursday, January 19, 2012

Blacklist case could break new ground

WORKERS fighting the employers' blacklisting of those who stand up for their rights will know by the end of Friday afternoon whether or not they have won a historic case against a major construction company.

Carillion plc boasts of employing around 50,000 people, and having annual revenue of around £5bn, with operations across Britain and in Europe, Canada, the Middle East, North Africa and Caribbean.

Dave Smith is a skilled engineer who found himself blacklisted and unable to get work for which he was qualified, after he had raised concerns about asbestos and poor toilet facilities when he was a safety representative for the building trade union UCATT.

Dave was fired from a Schal site after presenting a petition from 150 workers complaining about “pigsty” toilets. One manager filmed Dave as workers protested against his dismissal from the Schal job in 1999. Schal and Mowlem are both part of Carillion now.

This week the Holborn employment tribunal has been hearing from Dave and his legal representatives, about how he and his family were affected by the blacklist, and from Carillon defending its part. When I managed to look in on Wednesday the room was packed, with a number of workers having come to support Dave Smith and follow the case. Dave's lawyer David Renton was attempting to elicit from Carrillion management an acknowledgement of responsibility for agency staff employed on their sites.

Two years ago the Information Commissioners Office(ICO) which is concerned with data protection ordered a raid on the Midlands offices of the Consulting Association(CA), a business established by a former officer of the notorious right-wing Economic League, whose anti-union, witch-hunting and intelligence gathering activities went back to 1919.

What they uncovered was a collection of confidential files on workers, to which companies could provide information, and which could then be circulated to those who subscribed, ennabling them to maintain a blacklist. This is particularly effective in the construction industry, where workers have to apply for work as it arises, but can find that a black mark against their name for whatever reason can affect them from way back. (By contrast, workers affected in later life by health problems such as caused by exposure to asbestos may have difficulty tracing past employers such as sub-contractors who are no longer in business, in order to pursue compensation claims).

In July 2009, Ian Kerr, the private investigator who ran the CA, was fined £5,000 under the Data Protection Act. But in the previous five years firms which subscribed had paid £500,000 to the CA for its services.

Evidence disclosed by the ICO investigation showed that senior managers from Carillion and two subsidiary companies, John Mowlem and Schal, gave information to the illegal CA operation which could be used in the blacklist.This information was circulated among the 44 largest contractors in the UK building industry. They used it to deny people like Dave work in the industry. An estimated 3,200 workers were effected by the blacklist, and doubtless many still are.

Dave Smith was the first person allowed to view the entire CA blacklist, without restrictions. He found that his own file, including information on his wife and friends, was 36 pages long. Dave is accusing Carillion of victimisation, and says he and his family were made to suffer as a result of his perfectly legitimate activity as a trade union representative concerned over health and safety. For over ten years he could not get work in construction or earn a decent wage.

As Dave says, “I was a qualified engineer during one of the longest building booms this country has ever known. My children were on milk tokens.”

In his closing submission today, David Renton said:. "This case is about companies telling lies about a worker. Lies that caused that worker detriment. Even now the companies are still not prepared to fully come clean about what they have done"

Besides being able to cite over a hundred files that show the extent of the blacklisting of which his was one case, Dave Smith could be breaking new ground for workers' rights under law.
He argues that the blacklist breached Article 8 (right to privacy) and Article 11 (right to association) of the European Convention of Human Rights.

Under current UK law, only direct “employees” are entitled to legal protection at work. But the possible human rights breaches call for the Employment Tribunal to interpret legislation in such a way to cover all workers. A victory for Dave would set a precedent.establishing rights for for Britain’s 1.6 million agency workers, who are currently deprived of employment law rights.i
"If we win - we're told it will be a landmark decision for agency workers and blacklisting
If we lose - we're off to the European Court of Human Rights, " Dave promised yesterday.

There is more to this case still. The evidence which has come up shows that spies attended meetings and gathered information about people outside work.

Another Dave, Dave
Clancy said in the hearing under oath:

"There is information on the Consulting Asociation files that I believe could only be supplied by the police or the security services"

He also told the court that the Consulting Association held files on elected politicians, journalists, lawyers and academics.

Dave Clancy is the Investigations Manager at the Information Commissioners Office, the man who led the raid on the Consulting Association and discovered the blacklist. He is an ex-police officer.

Labour MP John McDonnell said after hearing these revelations: “I am calling upon the Government to launch a public inquiry into the full extent and impact on people’s lives of blacklisting. These revelations are truly shocking and warrant a detailed and open, public investigation."

With thanks to Simon Basketter (Socialist Worker ) and John Millington(Morning Star) for their coverage of case.

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