Campaigners have called for a change in the law after a worker was denied justice even though a company admitted placing him on the blacklist

Blacklist protestors in Oxford Street, February 2015

Blacklist protestors in Oxford Street, February 2015

Campaigners have called for a change in the law after a worker was denied justice even though a company admitted placing him on the blacklist.

Dave Smith, an engineer and UCATT safety rep, was forced to leave the construction industry after he was placed on the Consulting Association blacklist for complaining about unpaid wages and raising concerns about safety issues such as asbestos and overflowing toilets on building sites under the control of different Carillion Group companies in the 1990s.

But yesterday he lost his test case in the Court of Appeal after judges ruled he was not protected by UK employment law because was on site via an employment agency and not directly by the company that blacklisted him.

He said:  “What is the point of employment law or the Human Rights Act? Even with mountains of documentary evidence and an admission from the company that they blacklisted me because I was a trade union member who had raised safety concerns, I still cannot win. This might be the law, but it is not justice.

“The endemic use of agency workers, zero hours contracts, umbrella companies and bogus self-employment means that millions of workers are being treated as second class citizens. If agency workers are denied their most basic employment rights and even human rights because of the ‘necessity test’, which was never introduced by government but is an invention arising from legal precedents by judges, then it is time for parliament to change the law”.

Paragraph five of the judgement delivered by Lord Justice Elias, Lord Justice Fulford and Dame Janet Smith, read: “Carillion accepted that Mowlem had provided information about the appellant to the Consulting Association between 1997 and 1999; that it was for the purpose of penalising him for taking part in the activities of an independent trade union and acting as a safety representative; and that the provision of this information caused him a detriment”.  Adding “the evidence against the company was very powerful”.

Paragraph 22 notes: “It is not against public policy for a contractor to obtain services in this way, even where the purpose is to avoid legal obligations which would otherwise arise were the workers directly employed. That will frequently .. be the reason why the employer enters into a relationship with an agency. A contract cannot be implied merely because the court disapproves of the employer’s objective”.

Smith was defeated by what is known as the “necessity test” which has been developed by legal precedents in tribunal rulings by judges over the past few years. The effect of the ‘necessity test’ is to deny any agency worker the right to win a claim for  unfair dismissal or in this case, victimisation for raising safety concerns -even when the documentary evidence of wrong doing is overwhelming.

John Hendy QC acting on behalf of Smith has raised the issue of breaches of Human Rights.

Para 42 of the judgement notes “Section 3 of the Human Rights Act requires courts to interpret legislation so as to give effect to the rights conferred by the Act “so far as it is possible to do so”.  In this case the submission is that the acts of the employer amounted to breaches of both Articles 8 and 11 of the European Convention on Human Rights protecting private life and freedom of association respectively; and in accordance with section 3, the courts should construe these domestic statutory provisions so as to give effect to those Convention rights”.

But again because of the initial hurdle of the ‘necessity test’ the written judgement declares that “the Human Rights Act has no application to the particular complaints advanced in this case”.

In Para 52, the judgement concludes by stating that : the test case “raised interesting and complex issues which may have to be resolved on another occasion”.

Dave Smith is the author of Blacklisted


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Tim Lezard

Campaigning journalist, editor of @Union_NewsUK, NUJ exec member; lover of cricket, football, cycling, theatre and dodgy punk bands

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