Tribunal victory for Unite rep blacklisted by construction bosses ‘draws line in the sand’

blacklist-zebraReposted from the Unite website:

A Unite workplace rep, who was blacklisted by his employer Interserve Industrial Services because of his union activities while working at a power station at Runcorn, Cheshire, has won his employment tribunal (ET) case for unfair dismissal.

Unite, the country’s largest union, hailed this as ‘a great victory which draws a line in the sand’ for construction industry bosses who victimise union representatives.

John Kelly, a rigger/erector who worked for three years at the energy-from-waste power station being built at Runcorn, was awarded a total of £3,253.11 by the Liverpool tribunal for unfair dismissal (£2,003.11) and damages for injured feelings (£1,250).

The tribunal decided that as the work at Runcorn was coming to an end in July 2014, John Kelly – described as ‘a good worker with considerable experience’ –  was not offered work at the Capenhurst site, also in Cheshire, because he was a workplace representative and a member of Unite.

The judgement  stated that Unite regional officer Steve Benson was ‘a credible and believable witness’, while the construction manager, Trevor Collins, responsible for hiring new labour, had made Facebook entries to his friends, expressing his dislike for the ‘Liverpudlian elements’ in the workforce – a large percentage of whom were from Liverpool.

The judgement stated: “The tribunal did not find it credible that the claimant (John Kelly) had been considered for vacant positions by Trevor Collins.

“In short, Trevor Collins did not want the claimant (an employee representative for Unite and activist) working on the Capenhurst project under his management, he was motivated by the claimant’s membership of Unite and his known activities in that capacity.”

Unite assistant general secretary Gail Cartmail said: “Unite will not tolerate abuse by employers of our elected representatives. This successful employment tribunal decision shows Unite will not suffer in silence while employers try to stifle our voice on construction sites.

“This is a great victory which draws a line in the sand for construction industry employers who are tempted to victimise and blacklist our members for carrying out legitimate trade union activities.

“We welcome Labour’s pledge to outlaw the odious practice of blacklisting once and for all.

“Tomorrow (Tuesday 28 April) workers across the world mark International Workers’ Memorial Day when we remember the dead and fight for the living. Unite reps are workers frontline defence against hazardous working conditions and deserve to be applauded not victimised for their efforts”.

John Kelly said: “I feel very pleased that I took this company on with the help of Unite, as this shows that bad employers can be stood up to and be defeated. The main reason was to show other lads and shop stewards we are getting blacklisted and we should stand up for our rights.”

John Kelly was dismissed in April 2014, but subsequently found work with another company unconnected with this case.

Unite director of legal, affiliated services & membership Howard Beckett said: “This is a fine example of how Unite’s legal services fight – and is successful – on behalf of our 1.4 million members. It shows the strong benefits of belonging to a trade union to obtain representation. We would like to thank the efforts of EAD Solicitors in bringing John Kelly’s case to a successful conclusion.”

Read the full ET judgment [PDF]

Blacklisting and Human Rights

From Garden Court Chambers:

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