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The legal landscape


THE PRACTICE of employers blacklisting potential troublemakers has never been covered directly by legislation. In 2003 the DTI consulted on draft regulations to deal with the issue, but failed to follow through, due to a lack of evidence over the prevalence of the practice.

This leaves a legal loophole whereby it is currently unlawful for employers to discriminate against staff on grounds of trade union membership and activities ? but it is still legal for blacklisters to encourage employers to discriminate in this way by supplying them with information identifying trade unionists.

In 1992 the Conservatives passed the Trade Union and Labour Relations (Consolidation) Act, which expressly outlaws arrangements or practices where employees are blacklisted because they are not union members ? but there is no corresponding clause outlawing such practices where they are members of unions. The 1999 Employment Relations Act sought to address this by allowing for blacklisting regulations ? later abandoned by the DTI.

But employers implicated in blacklisting could fall foul of the 1998 Data Protection Act. Under the act personal data ? which includes National Insurance numbers ? is not deemed to have been processed fairly if there is a breach of the 'implied duty of trust and confidence' between employer and staff.

Helen Boddy, employment partner at law firm Shadbolt & Co said: 'For employers to pass on personal information for blacklisting purposes would breach the act and amount to a breach of the duty of t rust and conf idence owed to employees.' But she adds: 'The difficulty would be in policing and enforcement. A worker has the right to know what information is kept about him and why it is being kept. He can also request that such information is not used where it is likely to cause damage or distress. But if the information is kept secretly, the worker will not know and will have difficulty establishing that data protection principles are being abused.'