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Blacklisted worker: justice denied

23rd January 2014

Blacklisted worker: justice denied

A High Court judge had accepted a UCATT safety rep blacklisted for his safety activities was treated unjustly, but has no legal redress because he was an agency employee.  Dave Smith was repeatedly dismissed and refused work after his name appeared on The Consulting Association blacklist.

Dave has received no redress this time on account of a pure legal technicality. Potentially this offers a massive loophole for bosses to clamber through. If upheld, it means that employers can flout the intentions of the law and ruin workers’ lives in the process.

The Employment Appeal Tribunal judgement in the high profile blacklisting case of Smith v Carillion (JM) Ltd has been released. The written judgement by Mrs. Justice Slade DBE identifies human rights violations and expresses concern that Dave Smith (secretary of Blacklist Support Group) “suffered an injustice from blacklisting” but still finds in favour of Carillion because Mr Smith was not directly employed by the construction multinational but by an employment agency, and UK employment law does not protect agency workers.

John Hendy QC identified that blacklisting of Mr Smith breached Article 8 and Article 11 of the European Convention of Human Rights.

The case gained front page media coverage and was discussed in parliament, following the original Employment Tribunal hearing in 2012. The original Employment Tribunal decision found that managers for various companies within the Carillion group had been actively involved in blacklisting Mr. Smith in his role as a UCATT union safety rep who had raised safety concerns on a number of building sites in London and Essex. But Mr Smith lost his case because as an agency worker he was not protected by UK law. The original ET judgement states “We have reached our conclusions with considerable reluctance. It seems to us that he has suffered a genuine injustice and we greatly regret that the law provides him with no remedy.”

Dave Smith commented, “Being a union member is not against the law. Raising concerns about asbestos is not against the law. But despite mountains of documentary evidence proving that construction firms were systematically blacklisting union members who questioned safety standards, it seems that big business is above the law. Blacklisting is a violation of human rights. We intend to fight this all the way to Europe until we achieve justice. My heroic legal team are already preparing our appeal”.

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