Report in which the committee requests to be kept informed of development - REPORT_NO287, June 1993

1. 224. The Committee already examined the substance of this case at its May 1992 meeting when it presented an interim report to the Governing Body (see 283rd Report, paras. 422-452, approved by the Governing Body at its 253rd Session (May-June 1992)).
2. 225. The complainant sent further information in a communication dated 5 February 1993 alleging violations of Convention No. 98. The Government supplied further observations on the case in communications dated 5 October 1992 and 26 March 1993.
3. 226. The United Kingdom has ratified the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 227. In its original letter of complaint dated 20 December 1991, the Trades Union Congress (TUC) alleged that British law and practice failed to meet the requirements of Article 1 of Convention No. 98 in that there was no effective legal protection against anti-union discrimination at the time of recruitment. The TUC illustrated its allegations by referring to a series of particular cases, where individual workers either were unable to find work or were dismissed shortly after being hired, because they appeared on a "blacklist" of militant trade unionists established by the Economic League, a British organization whose funding came from industrial and financial companies which subscribed to its blacklisting activities. The Economic League's activities were subject to scrutiny by the House of Commons Select Committee on Employment during its inquiry into recruitment practices in 1989. Although the Select Committee recommended that action be taken to curb the League's blacklisting activities, the Secretary of State for Employment rejected that Committee's proposal that potential employees should have a right to see such information. The TUC described a number of situations, which it alleged were just a few examples of cases that had come to light, in which those affected had been told that their failure to find employment was due to their being blacklisted by the Economic League.
2. 228. In its reply, the Government indicated that the League was registered under the provisions of the 1984 Data Protection Act. The Government felt it was important that employers be able to obtain information in confidence from whatever source they considered appropriate about prospective employees. It furthermore considered that the requirements of Article 1 of Convention No. 98 were fully satisfied by section 1 of the Employment Act, 1990, which made it unlawful for an employer to refuse to employ persons on the grounds that they were, or were not, a trade union member, or because they refused to become, or ceased to be, such a member. Whatever the circumstances, anyone who thought that any of the rights afforded to him or her by section 1 of the 1990 Act had been infringed could complain to an industrial tribunal, and it would be for the tribunal to decide on the facts of the case. In addition, section 23 of the Employment Protection (Consolidation) Act, 1978 provided that an employee who believed that his employer had taken action (short of dismissal) against him because of his membership or non-membership of a trade union, or because of his union activities, could complain to an industrial tribunal. The Government therefore concluded that the cases quoted by the TUC did not in any way prove that the United Kingdom's legislation did not satisfy Convention No. 98.
3. 229. At its May-June 1992 Session, in the light of the Committee's interim conclusions, the Governing Body approved the following recommendations:
   • (a) The Committee expresses its concern at the allegations presented by the complainant organization and recalls that all practices involving the blacklisting of trade union officials or members constitute a serious threat to the free exercise of trade union rights and that, in general, governments should take stringent measures to combat such practices.
   • (b) The Committee requests the Government to provide the text of the Data Protection Act.
   • (c) The Committee requests the Government to take follow-up measures on the recommendations of the House of Commons Select Committee on Employment, and to inform it of these measures.
   • (d) The Committee requests the Government and the complainant organization to provide further information on the specific cases mentioned in the allegations and, in particular, to indicate whether the workers in question or other workers did institute legal proceedings and, if so, to inform the Committee of the decisions issued and reasons therefor.

B. The Government's reply

1. 230. In its communication of 5 October 1992, the Government refers to the recommendations made by the Committee following its previous examination of this case. With respect to the Committee's recommendation that action should be taken to combat practices threatening the free exercise of trade union rights, the Government reassures the Committee that its concerns are unnecessary, and re-emphasizes that United Kingdom legislation does ensure the free exercise of trade union rights by prohibiting acts of anti-union discrimination.
2. 231. As the Government made clear in its earlier observations, United Kingdom legislation in the form of the Employment Act, 1990, and the Employment Protection (Consolidation) Act, 1978, does provide remedies against acts of anti-union discrimination, namely denial of employment on the grounds of membership or non-membership of a trade union and dismissal and action (short of dismissal) on the grounds of trade union membership or activities. The Government stresses once again the point made in its previous observations that, by legislating to protect individuals from denial of employment on the grounds of trade union membership, it has actually extended its observance of Convention No. 98 in respect of Article 1 to an unprecedented degree. It has no reason to believe that these protections are not operating effectively.
3. 232. Turning to the Committee's question as to whether any of the workers mentioned in the allegations had instituted legal proceedings, the Government replies that there is no evidence that any of those workers referred to in the TUC's allegations have ever applied to have their cases heard in an industrial tribunal. This absence of evidence that any legal proceedings have been taken does not, however, in the Government's view, demonstrate any inadequacy in the legislation. At a time when the number of cases going before industrial tribunals on a range of issues has generally been maintained or increased, it rather suggests two things: first, that there is not a widespread problem with abuses of this particular kind, since the legal remedies which are readily available have not even been sought; second, that the legislation - particularly the 1990 Act - has only been in place a very short time, and that there has therefore been little opportunity to test it. For example, the 1991 annual report of the Advisory, Conciliation and Arbitration Service refers to there only having been eight cases under section 1 of the Act received for conciliation. The Government suggests that in these circumstances it would certainly be premature, if not unjust, to allege that the legislation is inadequate in the absence of it ever having been properly tested.
4. 233. The Government then confirms that the Economic League is still registered with the Data Protection Registrar under the provisions of the Data Protection Act, 1984, of which it encloses a copy along with its observations. Moreover, the Govenment draws the Committee's attention to the extensive provisions available under the Act for individuals who believe that the information held on them is incorrect. Indeed, the Data Protection Office has prosecuted and warned people in a number of cases for holding incorrect information, and will continue to fulfil this function.
5. 234. As regards the measures taken to implement the recommendations of the House of Commons Select Committee, the Government states that only two of the Select Committee's recommendations following its 1989 inquiry into recruitment practices could be said to have any bearing on the activities of the Economic League. These recommended (a) that provisions analogous to those in the Consumer Credit Act, 1974, should be applied to information about potential employees supplied to employers by organizations keeping such information; that if the potential employee is refused employment the information should be put to the employee so as to provide a chance for the employee to refute it; and (b) that all organizations supplying information about potential employees should be subject to licensing and to a code of practice.
6. 235. The Government's response to these recommendations was, and remains, that given the already extensive provisions available under the Data Protection Act, the Committee's proposals would merely place significant additional burdens on all employers without adding greatly to the protection already provided. They might also add to the burdens of many other bodies who routinely supply information and references in confidence on potential employees (e.g. banks, schools, colleges). On the other hand, the Government believes that the action it has in fact taken subsequently with the introduction of the Employment Act, 1990, has undoubtedly filled a gap in the protection available to individuals, preventing discrimination on the grounds of union membership or activities (regardless of whether it is a result of information supplied by an organization or not).
7. 236. In this connection, the Government furthermore stresses that Convention No. 98 is in any case not primarily concerned with the activities of bodies such as the Economic League, but rather with the prevention of anti-union discrimination by employers. Provided that the law contains protections which meet the requirements of the Convention in preventing employers from dismissing or penalizing employees, and from refusing individuals employment on anti-union grounds, it is unnecessary for the law to curtail the activities of bodies like the Economic League in either of the ways recommended by the Commons Select Committee, or indeed in any other way. Having said that, however, the Government reiterates that there is no evidence that the League is acting unlawfully. If, in a particular case, a person considers that the information provided to a prospective employer is inaccurate, there are existing remedies under United Kingdom civil law. When these remedies are viewed in conjunction with those now available for denial of employment under the Employment Act, 1990, it is the Government's contention that applicants for employment are adequately and effectively protected.
8. 237. The United Kingdom Government thus remains convinced that there is no evidence to suggest that its legislation does not fully satisfy the relevant provisions of Convention No. 98. The Government hopes that the Committee would agree that its compliance with Convention No. 98 is comprehensively demonstrated by the measures it has taken to ensure that such practices as might otherwise threaten the exercise of trade union rights have been made illegal.

C. The complainant's further information

1. 238. In its communication of 5 February 1993, the TUC states that all the cases quoted in its original complaint arose before the Employment Act, 1990, and that as far as it could ascertain none of the individuals concerned sought legal redress. The TUC submits that the legal departments of the unions concerned have advised their members that there is no effective legal protection against discrimination in recruitment resulting from blacklisting under the Employment Protection (Consolidation) Act, 1978, or the Employment Act, 1990. None of the members of unions affiliated to the TUC who have been shown their names on copies of the Economic League's list have sought legal redress because the very essence of blacklisting is its secrecy and they believed it would be impossible to prove that the blacklisting was the cause of loss they had suffered.
2. 239. The TUC explains that section 1 of the Employment Act, 1990, which is now subsumed into the Trade Union and Labour Relations (Consolidation) Act, 1992, as section 137 of that Act, refers solely to current membership or non-membership of a union, and not to past membership or activities. Although the TUC General Council asked the Government to have the Bill amended so that it would have afforded protection precisely against forms of anti-union discrimination, such as those made possible by the Economic League, the Government refused to do so.
3. 240. Moreover, the accuracy of material put out by the Economic League gives serious course for concern in the context of Convention No. 98. Although the Government has welcomed the League's assurance that it would supply members of the public on request with details of information held on them, the TUC points out that a person making such a request would be asked to provide full details of his or her personal circumstances, history and work details, so that if an individual were not on the League's files before inquiring, he or she would be likely to be on a file afterwards. As a result, the TUC General Council has expressed its disappointment at the Government's refusal to follow the recommendation of the Committee on Freedom of Association to take follow-up measures on the recommendations of the House of Commons Select Committee on Employment.
4. 241. The TUC then refers to the Government's claim that a person who considers that the information provided to a prospective employer is inaccurate has a remedy under civil law. According to the TUC, that would require that the victim be able to see the information to judge its accuracy, and the secrecy of blacklisting means that a worker unable to gain employment would have to sue for libel before the rules of discovery would force an organization like the Economic League to reveal such documentation to the court. Libel actions do not attract legal aid in Britain and are usually very expensive. With all the additional financial and other burdens being put on trade unions by the Government, in particular as a result of the recent withdrawal of financial support for holding postal ballots required by the 1984 Act, it is even less likely than before that a trade union would be able to commit itself to cover legal costs in such a case. Moreover, a worker who is employed and subsequently dismissed could sue the organization supplying the information for inducing a breach of contract (such a case is outlined below) but a similar course would not be open to a worker who has been refused employment as a result of such information because in civil law there is no tort of wrongfully inducing a person not to enter into a contract.
5. 242. The TUC describes another specific case of discrimination, which concerns a Mr. McKevitt who was employed by Trans-Manche Link (TML) for a few hours and then dismissed. Mr. McKevitt began work in the construction industry in 1964 where he worked as a tunneller. He joined the Transport and General Workers' Union (T&GWU) in 1975. On one site Mr. McKevitt pointed out to management, on behalf of several other workers, unsafe construction practices in the tunnel they were building. Later that year Mr. McKevitt was injured in a rockfall underground. In 1976 he left his job and allowed his trade union membership to lapse.
6. 243. In 1987 Mr. McKevitt was considering returning to construction work and was contacted by Mr. Cardiff, a senior general foreman at TML who knew first hand of his expertise and experience. At that time TML was having difficulty recruiting skilled workers, and Mr. Cardiff asked Mr. McKevitt to come to Dover immediately where a job was waiting for him. On 1 September 1987 Mr. McKevitt travelled to the tunnel construction site and was then sent for a medical, to fill in certain forms, and for an induction course. On the first day of the course he was told that he would not be allowed to start work. He telephoned Mr. Cardiff, who told him that TML had done a check and that they had been told he was a troublemaker. He was told that it had something to do with what had happened in 1975. On his return to Northern Ireland, Mr. McKevitt wrote to TML to seek an explanation of why they had changed their mind about employing him. TML refunded his fare, but would not answer his main question. Mr. McKevitt wrote to TML again requesting any information held by them under the provisions of the Data Protection Act. TML sent him a short computer printout with the entry status "unsuitable", with a covering letter saying that they had not obtained this information from any other user of computerized information. He was unable to gain further information from TML. Mr. McKevitt was unemployed for a year after that.
7. 244. After the Daily Mirror published an article about the Economic League in May 1989, Mr. McKevitt visited the League's offices in June in an attempt to find out if he was on its list. He was told in person and in writing that the League had no record of him. In 1991, when the Daily Mirror obtained a large part of the League's blacklist, Mr. McKevitt's name was included and marked with "K", the code for alleged troublemakers in the construction industry. At the time that Mr. McKevitt was employed and then dismissed by TML, the five companies which comprise it were all subscribers to the Economic League. Mr. McKevitt is suing the Economic League for negligent misrepresentation and inducing breach of contract by his employers.
8. 245. The TUC asserts that this case clearly illustrates the methods of the Economic League and of employers which subscribe to its services. It demonstrates that the League has not always disclosed information sought by those who suspect they are victims of blacklisting, and that it has been dishonest. That underlines the truth of the TUC's contention that the secrecy surrounding blacklisting prevents most victims from seeking redress. The TUC adds that it is regrettable that people who are unemployed because of discrimination often lose contact with their union and do not qualify for financial support from their union, since unemployed people do not generally have sufficient funds to seek legal advice on complex issues, or pursue actions.
9. 246. The TUC then refers to a memorandum from one of its affiliates, the Amalgamated Engineering and Electrical Union, a copy of which it attaches to its communication of 5 February 1993. This memorandum describes in detail the situation of three members of the Amalgamated Engineering Union (AEU) who are alleged victims of blacklisting by the Economic League, and the results of their attempts to find out if they are on its blacklist. The TUC states that although Mr. Dorton's case has been publicized, the others named in the memorandum have not. The TUC is concerned that they should not suffer any further discrimination, and therefore requests that no reference be made to their names in any published account of this complaint.
10. 247. The memorandum also mentions the fact that a public announcement had been made by the then Director-General of the League, Michael Noar, stating that anyone who suspected that his name might be on records held by the League could write to inquire. When one of the members of the AEU wrote to make such an inquiry, he received the standard letter, stating that in order to answer his inquiry the League wanted him to provide details "of any political affiliations, articles or letters published, publications written and/or the reasons why you believe we may have some reference to you". The TUC is of the view that the League wanted the applicant to assist it to bring its own records up to date, with little prospect that it would reveal any of the information it already held.
11. 248. As regards Mr. Dorton, whose situation had been described in detail during the Committee's previous examination of this case, he first received a letter from the League on 24 February 1989, which seems to avoid the issue as to whether it held any record on him. Mr. Noar simply states: "We have been quite unable to find any reference to any political activity on your part, extremist or otherwise, and accordingly I am happy to assure you that there is no suggestion on the League's part that you are in any sense politically unsuitable". Clearly this was not a satisfactory answer, as Mr. Dorton's MP, Mr. Evennett, was quick to point out in a letter to the League. This resulted in a further letter of 10 March 1989 from the League stating: "We have no reference to any trade union activity on your part". The memorandum states that, as a result, Mr. Dorton has no idea who provided the information against him or what was said about him. In the face of a denial by the League, without information to the contrary, he has no choice but to accept such a denial. This conclusion is reinforced by the fact that as such information is not contained on computer records, the victims have no legal recourse.
12. 249. The memorandum then refers to a book by Hollingsworth and Tremayne, "The Economic League: The Silent McCarthyism", which it says has considerably increased the knowledge of the AEU on this matter. According to the book, owing to bad publicity received by the League much of its support has dropped away, including that of the major banks which were previously subscribers. Nevertheless, the book gives many examples of persons who were placed on the blacklist on the basis of wrong or misleading information, with no attempt by the League to update the information. So although the League is weaker than it was before, it remains a pernicious influence, in the absence of any means of checking false, misleading and out-of-date information by the persons named on its records.
13. 250. Finally, the memorandum states that the book also briefly examines the remedies that might exist under current law: (i) a claim of libel; (ii) a claim of conspiracy to injure, and (iii) a claim of negligence. The authors recognize that none of these claims are particularly strong. Of course, if any information is incorrect and likely to do harm to the individual concerned, there is a prima facie case of defamation, but the claim may be successfully defended by the League on the grounds that there was "qualified privilege" because it was information passed between two people who are deemed to have a "legitimate common interest". In any case, the memorandum states that the AEU does not have a case as regards a claim of libel, since as far as Mr. Dorton is concerned, for example, athough the information may be erroneous, it is not known who is responsible for it or what the written statements actually say.
14. 251. As to the possibility of "conspiracy", it is a settled principle of English law that a combination of people acting together to cause damage to a person is unlawful. It is necessary, however, to show that the parties to the conspiracy deliberately acted in order to cause damage and it is not enough that damage resulted from their actions. The vetting agencies, including the League, may claim that they are only acting in the interests of industrial harmony and it would not be surprising if British courts were ready to uphold such a defence.
15. 252. With regard to negligence, this can relate only to a failure to collect and retain accurate information (and clearly cannot apply if the information is accurate). It would also be necessary to establish that the probability that loss would be caused to the plaintiff by passing on inaccurate information was known to the League. It may also be necessary to establish that the League had recommended that such a person should not be employed. The League habitually claims that it never makes any such recommendation to employers and that it merely provides information, although the book cites examples to show that this claim is frequently false. The memorandum ends with the conclusion that there is no positive action which can be recommended to the AEU on behalf of the particular members mentioned therein.

D. The Government's further reply

1. 253. In its communication of 26 March 1993, by which it forwards its observations on the complainant's further information, the Government contends that the TUC's latest communication does not raise any new issues of substance in respect of the nature or content of United Kingdom law in this area. Moreover, it does not present any new cases of where the law has been, or is in the process of being, tested in this area.
2. 254. As the Government has made clear in its earlier observations, not only are there existing remedies under United Kingdom civil law when inaccurate information is provided to an employer, there is also legislation in place to protect against discrimination on grounds of trade union membership, as specifically required by Convention No. 98. Furthermore, the Government believes it would be unreasonable, or at least premature, in the absence of it ever having been properly tested, to allege that the legislation is inadequate in terms of the protection it offers, particularly when that legislation has been extended to provide observance of Convention No. 98 to an unprecedented degree.
3. 255. Finally, the Government wishes to inform the Committee that it would seem, from the facts available in the complainant's communication, that Mr. McKevitt might have been able to make a complaint to an industrial tribunal against TML for unfair dismissal on trade union grounds. However, from the information available to the Government, there is no evidence of any application having been made to an industrial tribunal by Mr. McKevitt.

E. The Committee's conclusions

1. 256. The Committee notes that the complainant still considers there to be no effective legal protection against discrimination in recruitment resulting from blacklisting under UK legislation, while the Government maintains that the legislation fully satisfies the relevant provisions of Convention No. 98. The Committee, for its part, believes that a distinction should be made between remedies available under civil law and those available under other legislation.
2. 257. As regards civil law, the Committee notes the detailed arguments put forward by the complainant, which are not refuted by the Government, as to why the remedies under current law, namely a claim of libel, a claim of conspiracy to injure and a claim of negligence, would not help in cases involving victims of acts of anti-union discrimination resulting from blacklisting. The Committee further notes the complainant's argument, which the Government again does not contradict, to the effect that a worker who is employed and subsequently dismissed could sue the organization supplying the information for inducing a breach of contract; a similar course, however, would not be open to a worker who has been refused employment as a result of the information, because under civil law there is no tort of wrongfully inducing a person not to enter into a contract.
3. 258. In view of the limitations of civil law, the Committee would consider other legislation, namely the Employment Act 1990 and the Employment Protection (Consolidation) Act 1978 to be more appropriate and efficient in ensuring protection to workers against acts of anti-union discrimination in their employment. As the Committee recognized in its conclusions during its previous examination of this case, these two Acts do provide certain remedies in respect of acts of anti-union discrimination (see 283rd Report, para. 450). In this connection, the Committee regrets that the Government did not deem it appropriate to embody in the Employment Act 1990 provisions affording explicit protection against blacklisting or other forms of discrimination based on past trade union activities. The Committee has in any case expressed the view that the existence of legislative provisions prohibiting acts of anti-union discrimination is not sufficient if these provisions are not accompanied by effective procedures ensuring their application in practice. Thus, for example, it may often be difficult, if not impossible, for a worker to furnish proof of an act of anti-union discrimination of which he has been the victim. This shows the full importance of Article 3 of Convention No. 98 which provides that machinery appropriate to national conditions shall be established, where necessary, to ensure respect for the right to organize as defined in Articles 1 and 2 (Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 567).
4. 259. As regards the application in practice of procedures established under the relevant legislative provision, the Committee notes that both the complainant and the Government confirm that none of the workers mentioned in the original complaint who were alleged victims of blacklisting by the Economic League had instituted legal proceedings. However, they attribute this to very different reasons.
5. 260. The thrust of the complainant's argument is that the affected workers have been advised by the legal departments of their respective unions that the very essence of blacklisting is its secrecy and that under current legislation, it would be almost impossible for them to prove that there had been discrimination against them at the point of recruitment. The Government, for its part, contends that the absence of legal proceedings does not demonstrate any inadequacy in the legislation but rather that there is not a widespread problem with abuses of this particular kind. It also suggests, according to the Government, that the legislation, particularly the 1990 Act, has only been in place a very short time, and as a result, has not been properly tested.
6. 261. The Committee observes that the Employment Act 1990 is relatively new and that there might not have been much opportunity to test it. However, it cannot accept the argument that since the legal remedies which are available have not even been sought, this suggests that there is not a widespread problem. Based on the further detailed information provided by the complainant, the Committee considers that, if the individuals who are allegedly victims of blacklisting have not sought legal redress, it may be due to the practical problems they would have encountered when undertaking such action including the prohibitive costs involved, difficulty in proving such discrimination and fear of suffering further discrimination.
7. 262. Moreover, the Committee has serious doubts about the Economic League's assurance that it will supply members of the public, on request, with details of any information held on them. The Committee notes from the complainant's further allegations and copies of letters to back up those allegations, that following such requests for information from certain members of the Amalgamated and Engineering Union (AEU), the Economic League responded to those requests by asking the workers concerned to provide details of their political affiliations, articles and letters published and reasons why they believed the League might have some reference to them. The Committee finds it hard to believe that the League intended to disclose any information in the first place by responding in this manner. In addition, Mr. McKevitt's case casts serious doubts on the reliability of the League. Despite being told in person and in writing in June 1989 that he was not on its list, Mr. McKevitt's name was found to be on the League's blacklist when the Daily Mirror obtained a large part of it in 1991.
8. 263. The Government points out that the Economic League is still registered with the Data Protection Registrar and that extensive provisions are available under the Data Protection Act 1984 for individuals who believe that the information held on them is incorrect. The Committee notes from the AEU's memorandum, that as information regarding the blacklisting of individuals is not contained on computer records, the victims have no legal recourse. It appears to the Committee that the Data Protection Act is of limited use to those individuals who suspect that they are victims of blacklisting and who seek information that is not contained on computer records.
9. 264. Whilst recognizing that UK legislation, in the form of the Employment Act 1990 and the Employment Protection (Consolidation) Act 1978, may provide some remedy against acts of anti-union discrimination, the Committee considers that workers do face many practical difficulties in proving the real nature of their dismissal or denial of employment, especially when seen in the context of blacklisting which is a practice whose very strength lies in its secrecy. Overall, the Committee considers that the situation in this respect in the United Kingdom is not compatible with the requirements of Convention No. 98.
10. 265. In this connection, the Committee regrets that the Government did not take any measures to implement the recommendations of the House of Commons Select Committee. The Government, which decribes these proposals in detail, states that they would place significant additional burdens on the employers without adding greatly to the protections already provided to workers. In the Committee's view however, these recommendations, if implemented, would significantly assist the workers concerned since they would be apprised immediately of the reasons for their dismissal or denial of employment and given a chance to refute the information, which is not the case now. While it is true that it is important for employers to obtain information about prospective employees, it is equally true that employees with past trade union membership or activities should be informed about the information held on them and given a chance to challenge it, especially if it is erroneous and obtained from an unreliable source. Moreover, in these conditions, the employees concerned would be more inclined to institute legal proceedings since they would be in a better position to prove the real nature of their dismissal or denial of employment. Thus the Committee would urge the Government to implement the Select Committee's recommendations which would fill a gap in the protection currently available to individuals and which would be in the nature of measures envisaged by Article 3 of the Convention.
11. 266. The Committee notes that in Mr. McKevitt's case the Economic League is being sued for negligent misrepresentation and inducing breach of contract by his employers. It requests the complainant and the Government to keep it informed of the decision handed down.