In an unusual step, the UK government has joined a test case being heard at the Court of Appeal this week as an intervener. Judgment is being made on whether the blacklisting of engineer Dave Smith breached the European Convention on Human Rights (ECHR).
Carillion (JM) Ltd admitted that staff supplied information to the Consulting Association blacklist about Smith because he was a Safety Representative for the construction union, UCATT.
Smith lost his original Employment Tribunal in 2012 because he was employed via an employment agency, (rather than working directly for the company) and only direct employees are protected by the employment law in question.
The original Employment Tribunal judgment on the case concluded that Smith “…suffered a genuine injustice and we greatly regret that the law provides him with no remedy.”
On 4 February 2015, in the Court of Appeal, John Hendy QC and David Renton argued that blacklisting is a breach of Articles 8 (Right to respect for private and family life) and 11 (Right to freedom of assembly and association) of the ECHR. Therefore if Smith is not protected by UK employment law, then UK law itself cannot be compatible with the Convention rights. They asked the Court of Appeal to agree a ‘declaration of incompatibility’.
The UK government, as the intervener, has also presented legal submissions. The government admitted that the blacklisting of trade unionists is a breach of Articles 8 and 11 of the ECHR, and that Smith only lost his original case due to his employment status. Despite this admission, the UK government argued that the Court should not issue a ‘declaration of incompatibility’.
John Hendy QC and David Renton responded by stating:
“The European Convention is to be considered in the light of the fact that it was drawn up in the aftermath of the Second World War to prevent in future the development of totalitarian regimes such as that of Nazi Germany by forestalling the incremental abuses of human rights which led such regimes ultimately to the grotesque atrocities for which they are responsible. Blacklisting of workers was precisely one of the early abuses by which the Nazis suppressed opposition to their rule from the labour and trade union movement”.
David, representing Mr. Smith, was instructed by the Free Representation Unit (FRU).
David Renton is a member of the Garden Court Chambers Employment Team.
David Renton also blogs at Struck Out