Rapport intérimaire - Rapport No. 283, Juin 1992

1. 422. The Trades Union Congress (TUC) presented a complaint against the Government of the United Kingdom in a communication of 20 December 1991, alleging violations of Convention No. 98. The Government sent its observations on the case by a communication dated 14 February 1992.
2. 423. The United Kingdom has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 424. In its communication of 20 December 1991, the complainant organisation submits that British law and practice fail to meet the requirements of Article 1 of Convention No. 98 in that there is no effective legal protection against anti-union discrimination at the time of recruitment. The TUC illustrates its allegations by referring to a series of particular cases, where individual workers either were unable to find work or were dismissed shortly after their hiring, because they appeared on a "black list" of militant trade unionists established by the Economic League, which prospective employers allegedly consulted.
2. 425. According to the TUC, the Economic League is an organisation in Britain, whose activities are shrouded in secrecy. It is known that it is funded by industrial and financial companies which subscribe 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. The Committee recommended that action be taken to curb the League's blacklisting activities but the Secretary of State for Employment said only that employers using such services should satisfy themselves about the quality of the information they received. He rejected the proposal of the Committee that potential employees should have a right to see such information which in a high proportion of cases proved to be inaccurate. At present, individuals whose job prospects are blighted as a result of the material supplied by the Economic League have no means of redress.
3. 426. The 1990 Employment Act provides no protection for those whose livelihoods have already been affected by its operations. Until 1989 the Economic League held files on at least 22,000 individuals. They now claim to hold only 2,000 but this cannot be verified. In June 1990 they admitted to 10,000 before the Select Committee on Employment. The 1989 list was recently obtained by journalists from the national newspaper, the Daily Mirror, which obtained evidence that the Economic League was operating a blacklist for subscribing companies on which the names of many trade unionists appeared. The largest single group of workers on the Economic League's register were those in the construction industry, and the data was kept on its "K-list" containing the names of individuals who had been denied employment or dismissed shortly after commencing employment, for no apparent reason. These include cases of skilled working people who were unable to find employment despite acute shortages of their skills.
4. 427. The complainant describes a number of situations, which it says are just a few examples of cases that have come to light, in which those affected have been told that their failure to find employment was due to their being blacklisted by the Economic League.
5. 428. Mr. Malvyn Barton was a member of a union and there can be no case for describing his involvement in trade unions as illegitimate. He had never taken part in industrial action in his life or held a position within his union. He was placed on the Economic League's list and described in it as a militant. He was unable to find work from 1982 to 1988, despite having impeccable references.
6. 429. While working on the Beverley by-pass in Humberside for the Mowlem construction company, Mr. Dennis Huggins agreed, at the request of his colleagues, to become their shop steward. It was the only time he ever held such a position. When the job finished he was unable to find work again. After four months he contacted the industrial relations manager at Mowlem, who told Mr. Huggins that he thought highly of him and considered him to have been an effective shop steward who had negotiated better pay and conditions for his members without recommending industrial action. The industrial relations manager initially denied that Mr. Huggins had been blacklisted, but checked with the Economic League, who informed him that Mr. Huggins was politically unsuitable and that the Mowlem company had put him on the list.
7. 430. Mr. David Harrison had been involved in a bitter dispute in Liverpool in 1979 in which all those on strike had been dismissed and the plant closed down. The employer in the dispute passed on information to the Economic League's office in Warrington claiming that he (and others listed) had been exceptionally active in a recent dispute and companies were not recommended to employ these personnel. Subsequently, whilst employed by a small building company which had then been subcontracted by Tarmac plc., he found that his was the only name on a list of proposed workers deemed unacceptable by Tarmac to participate in this subcontracting work. He was told that he was on some sort of industrial blacklist and was warned that if he did not sort it out he would be laid off. The above cases are quoted in a book by Hollingsworth and Tremayne "The Economic League: The Silent McCarthyism".
8. 431. Mr. John Barlow is a bricklayer and a local secretary of the construction trade union UCATT in which he had been engaged in normal trade union work. He was repeatedly hired and then dismissed only a few hours later. He has been on the "K-list" of the Economic League for more than ten years. This case was quoted in the Daily Mirror in September 1991.
9. 432. Mr. Brian Dorton, a steel erector, was a member of the Amalgamated Engineering Union. In 1983 he applied to work as a steel erector with a company in desperate need of people with appropriate skills. He was offered a job, but the evening before he was due to start the interviewer telephoned him to say that the company would not take him on as he was regarded as a security risk. In 1986 he applied to work as a dumper driver at the building site of a new prison at Thamesmead, south-east London, but although he had been told that the contractor urgently needed a driver, and despite the fact that he lived locally, he received no job offer. In July 1986 Mr. Dorton returned to the site where the supervisor told him he had been instructed not to recruit him under any circumstances due to his trade union activities in the past. In 1988 Mr. Dorton applied for a job as a steel erector with a company subcontracted to Wimpey. He was told that the main contractor would not on any account let him start work on the contract at the Thamesmead prison site because he had been blacklisted. This case was also cited by the Daily Mirror as well as in a Parliamentary debate.
10. 433. In the same debate Ms. Maria Fyfe, MP for Glasgow Maryhill, attempted to introduce a new clause in the then Employment Bill to outlaw blacklisting agencies. She described the case of Larry Coleman, a trade unionist from Dover, who applied for work with the Trans-Manche Link (TML) consortium of companies 22 times and had been refused employment each time. He called a meeting of people who had been turned down for such work. One hundred attended. Many were former Kent miners who had participated in the 1984 miners' strike and had then lost their jobs as a result of pit closures. Ms. Fyfe pointed out that, although TML denied any connection with the Economic League and that it indulged in blacklisting, both the industrial relations officer and another manager at TML had attended an Economic League meeting in December 1987, when TML was recruiting many workers. Ms. Fyfe also wrote to all the people named on a construction company blacklist supplied by the Economic League, which she had been sent anonymously. Most of those who responded had finally opted for retraining or had been unemployed prior to retirement.
11. 434. The complainant organisation concludes that the toleration - indeed active encouragement - of this pattern of anti-union discrimination which has ruined the professional lives of many workers is yet another indication of the consistently hostile and vindictive approach of the Government towards legitimate trade union activity protected by the ILO Conventions.

B. The Government's reply

1. 435. The Government states that the Economic League is an organisation which was founded in 1919 with the stated aim to "reinforce support for democracy, personal freedom and free enterprise". The League maintains that it achieves this through: publications designed to promote and improve the knowledge and study of economics and other industrial and social subjects; maintaining and publicising the activities of anti-democratic and revolutionary groups from both the extreme right and left; and an industrial relations advisory service to industry and commerce, particularly aimed at countering politically motivated industrial unrest. The League provides, in confidence, information to its subscriber members on potential employees. It states that it derives its income from the sale of publications and advice to industry on potential employees and that it does not support, or accept support from, any political party. The office of the Data Protection Registrar has confirmed that the League is currently registered under the provisions of the Data Protection Act.
2. 436. The Government takes the view that it is important that employers should be able to obtain information in confidence from whatever source they consider appropriate about prospective employees. However, the Government stresses that there is a heavy responsibility on those who provide and those who use such information to ensure its accuracy. In that respect the Government has welcomed the League's assurance that it will supply members of the public, on request, with details of any information held on them. The Government emphasises that there is no evidence that the League is acting unlawfully. In addition, the TUC is incorrect to claim that there is no penalty in law against agencies which have spread false information about individuals. 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.
3. 437. The Government furthermore considers that the requirements of Article 1 of Convention No. 98 are fully satisfied by United Kingdom legislation. Section 1 of the Employment Act 1990 ensures that an individual's ability to obtain a job is not affected by the question of whether or not he or she is a member of a trade union. It does this by making it unlawful for an employer to refuse to employ persons on the grounds that they are, or are not, a trade union member, or because they refuse to become, or cease to be, such a member. The section therefore enacts the principle that individuals should not be denied employment on the grounds of their membership or non-membership of a trade union.
4. 438. As far as discrimination on grounds of past trade union activity is concerned, if an employer were to say, for example, that he had no objection to employing union members but refused to employ individuals because they had in the past attended and spoken at union meetings, there is no reason to believe that an industrial tribunal would not simply regard those activities as a basic part of union membership, and section 1 of the Act would therefore apply. In any case, whatever the circumstances, anyone who thinks that any of the rights afforded to him or her by section 1 of the 1990 Act have been infringed (e.g. he or she has been refused employment because of membership of a trade union) can complain to an industrial tribunal, and it will be for the tribunal to decide on the facts of the case.
5. 439. If a tribunal finds that an individual has been unlawfully refused employment for reasons relating to trade union membership, it will make a declaration to that effect. A tribunal can also award the complainant compensation to be paid by the prospective employer, and/or recommend that the prospective employer take action to remedy the adverse effect of the unlawful refusal on the complainant. A tribunal might for example recommend that an employer should consider the complainant for a job vacancy, although it cannot order him to do so. The tribunal will assess and award compensation on the same basis as damages for breach of statutory duty, and this may include compensation for injury to feelings. In cases where a party against whom a complaint is upheld fails, without reasonable justification, to comply with a recommendation to take action, the tribunal may increase its award of compensation, or make such an award if it has not already done so. The amount of compensation payable, including any additional compensation awarded for failure to comply with a recommendation, will be subject to a limit which is currently set at L10,000.
6. 440. In addition, section 23 of the Employment Protection (Consolidation) Act, 1978 provides that an employee who believes that his employer has taken action (short of dismissal) against him because of his membership or non-membership of a trade union, or because of his union activities, may complain to an industrial tribunal. Action (short of dismissal) is not defined by law but might cover, for instance, discrimination in promotion or threats of dismissal or redundancy, and so forth. Where a tribunal upholds such a complaint, it will make a declaration to that effect. It may also award such compensation as it considers is appropriate having regard to the nature and extent of the infringement of the employee's rights (and any consequent loss suffered by the employee). There is no limit to the level of compensation that may be awarded by a tribunal for an infringement of an employee's rights under these provisions.
7. 441. The Government maintains that the requirements of Article 1(2)(a) of Convention No. 98 are fully satisfied by the terms of the Employment Act, 1990. Nor is there any reason to believe that section 1 of the 1990 Act does not protect individuals against denials of employment on the grounds of their past membership of a trade union. Equally the Government contends that the requirements of Article 1(2)(b) are fully satisfied by sections 23 and 58 of the Employment Protection (Consolidation) Act, 1978, which protect individuals against dismissal and action (short of dismissal) on the grounds of trade union membership or activities.
8. 442. The Government therefore asserts that the cases quoted by the TUC do not in any way prove that the United Kingdom's legislation does not satisfy Convention No. 98. On the contrary, it should be emphasised that section 1 of the 1990 Act confers a new right which has never existed in the law of the United Kingdom before. By legislating to protect individuals from denial of employment on the grounds of trade union membership, when no previous Government had legislated to give such protection, the Government considers that, far from being in breach of the Convention, it is actually extending its observance of the Convention to an unprecedented degree.

C. The Committee's conclusions

1. 443. The Committee notes that this case concerns allegations to the effect that the Government of the United Kingdom violates Convention No. 98 and tolerates acts of anti-union discrimination by allowing employers to screen out workers whose names appear on a "black list" established and maintained by a private concern - the Economic League. The Government replies that employers should be able to obtain information in confidence, from whatever source they consider appropriate, about prospective employees. It adds that there are adequate protection and remedies in the United Kingdom legislation in this respect.
2. 444. At the outset the Committee would express its concern at the serious allegations presented by the complainant. It notes that, according to the allegations, several workers (whose cases are said to be only a few examples of a more general situation) were either denied work or dismissed shortly after being hired, because their names appeared on the "K" or other lists established by the Economic League. Among the workers mentioned in the complaint, some were told directly by the employer or one of its representatives that they were blacklisted because of their past trade union activity and, therefore, could not be hired. Others were informed more indirectly. These allegations, if proven, would constitute serious violations of the principles of freedom of association as embodied in Convention No. 98. The Committee also considers that these allegations are all the more a subject of concern since computerised processing of these lists would allow their extensive distribution and would expose the workers concerned to possible acts of anti-union discrimination and violations of the right of privacy on a very wide basis.
3. 445. In this respect, the Committee notes that the activities of the Economic League were scrutinised in 1989 by the House of Commons Select Committee on Employment which recommended that action be taken to curb the League's blacklisting activities. The Committee asks the Government to take follow-up measures in this respect and to inform it of such measures.
4. 446. The Committee notes in the Government's reply that the Economic League is registered under the Data Protection Act. It requests the Government to provide the text of this Act.
5. 447. As regards more specifically the issue of anti-union discrimination, the Committee recalls that in many such cases which it has examined in the past, it has considered that governments should, where necessary, take measures to ensure that workers are protected against acts, including dismissal, which are likely to provoke, or have as their object, anti-union discrimination in respect of employment of workers. (Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 542.)
6. 448. More particularly, the Committee has expressed the view 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 (Digest, para. 564). It also recalled that, where a government has undertaken to ensure that the right to associate shall be guaranteed by appropriate measures, that guarantee, in order to be effective, should, when necessary, be accompanied by measures which include the protection of workers against anti-union discrimination in their employment (259th Report, Case No. 1420, para. 234, approved by the Governing Body at its November 1988 Session).
7. 449. Therefore, it is incumbent upon the Committee to decide whether, in law and in fact, the legislation adequately protects the workers against acts of anti-union discrimination in their employment.
8. 450. The Committee observes that the United Kingdom legislation does provide certain remedies in respect of acts of anti-union discrimination. For instance, section 1 of the Employment Act, 1990, entitles a worker who alleges that he has been refused employment because he is a trade union member, to complain to an industrial tribunal, which may award compensatory damages and recommend that the employer reconsider the complainant for a job vacancy; if the employer does not comply with the recommendation, the amount of compensation may be increased up to a maximum of L10,000. In addition, section 23 of the Employment Protection (Consolidation) Act, 1978, provides a similar remedy in cases of action (short of dismissal) taken against employees because of their membership of a trade union. There is, in that case, no limit to the level of compensation. Therefore, it cannot be said that the United Kingdom legislation does not provide any remedies against acts of anti-union discrimination. Whether these remedies are adequate and efficient is however a separate question, which can only be decided on the facts.
9. 451. In the Committee's opinion, the existing remedies in the United Kingdom legislation would be in the nature of measures which aim at preventing the acts of anti-union discrimination mentioned in Article 1 of Convention No. 98, inasmuch as workers are informed of the motives for said acts. However, doubts may exist as to the efficiency of these procedures in those cases - which are probably numerous - where workers face practical difficulties in proving the real nature of their dismissal or of a denial of hiring. In order to make a fully informed decision, the Committee would appreciate obtaining more detailed information on the specific cases mentioned by the complainant organisation. The Committee therefore requests the Government and the complainant organisation to provide further information in this respect and, in particular, to indicate whether the workers in question or other workers did institute legal proceedings under section 1 of the Employment Act, 1990, or section 23 of the Employment Protection (Consolidation) Act, 1978 and, if so, to inform the Committee of the decisions issued and reasons therefor.