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November 23rd, 2009 by Timothy Pitt-Payne QC

One of our readers raised a question arising out of the previous post on employment blacklists. 

According to this report on the BBC website, Steve Acheson (who was on the blacklist) was the subject of an unsuccessful attempt by his former employer to obtain an injunction to prevent him from protesting against his dismissal.  Apparently the application was made under anti-terrorism legislation.  Our reader asks if we can throw any light on the legal basis for the application.

Unfortunately the answer is no; it appears that there is no report of the case online in any of the usual places.  The best I can find is this item from the website of Mr. Acheson’s solicitors.

We haven’t enabled the comments function on the blog.  But you are very welcome to send any feedback to  We are always delighted to see that people are reading and responding.


Banned Aid

November 21st, 2009 by Timothy Pitt-Payne QC

In March this year the Information Commissioner took enforcement action against the Consulting Association, which had been operating a secret blacklist of employees in the construction industry, including details of trade union activity. We posted about this story here, earlier this year.

Today, the Guardian has extensive coverage of what has happened since.

The Department for Business, Enterprise and Regulatory Reform has now consulted on draft regulations under section 3 of the Employment Relations Act 1999. The consultation ended on 18th August 2009. The proposed regulations are intended to outlaw the compilation, dissemination and use of blacklists of trade unionists. They would make it unlawful to refuse employment, or to dismiss employees or subject them to a detriment, for reasons related to a prohibited blacklist. Individuals who suffer loss through blacklisting would be able to bring claims either in the Employment Tribunal or in the civil courts, depending on the nature of their complaint.

The trade union UCATT commissioned a report from the Institute of Employment Rights about the proposed regulations. The report, by Professor Keith Ewing, was published on 15th September 2009: it is entitled “Ruined Lives”, and deals specifically with blacklisting in the construction industry. It includes sample material from Consulting Association files.  The report gives a fascinating history of the practice of blacklisting, going back to the late 19th century. It suggests a number of changes to the draft Regulations, including: that keeping or using a blacklist, or supplying information to it, should be a criminal offence; and that there should be a right to compensation for the fact of being included on a blacklist, even if the inclusion does not lead to any loss.

A further point to note about the draft Regulations is that they deal specifically with the blacklisting of trade unionists (as does section 3 of the 1999 Act). So they would not assist individuals who had been blacklisted for other reasons; e.g. because of their political beliefs and affiliations, or because they have a history of raising concerns about health and safety issues.

A number of individuals have brought employment tribunal claims arising out of alleged blacklisting. The claims have been consolidated and there will be a case management discussion in Manchester ET on 24th November 2009. This blog gives further information.

Meanwhile the Information Commissioner’s Office (ICO) has taken control of the Consulting Association database. Individuals who think that they may have been blacklisted can contact the ICO; for more information, see this page of the ICO’s website.


A special offer for all our readers

July 3rd, 2009 by Timothy Pitt-Payne QC

CPDcast have kindly agreed to give our readers free access to my podcast on Employment Vetting.

This is what you need to do:

Go to
Register for a free account with your email address.
Click on ‘Browse the CPDcasts’.
Select ‘Information Sharing & Employee Vetting’ from the list.
Enter the code payne09 in lower case in the box at the bottom of the screen and click ‘Enter’.
Then click ‘Proceed to Checkout’.

This means that you will be able to download the podcast for the special offer price of £0.00.


Podcast on employment vetting

July 2nd, 2009 by Timothy Pitt-Payne QC

Thanks to CPDcast, I have recently recorded a podcast on the subject of employment vetting.  It deals with various subjects, including CRB checks and the new ISA barring regime.  If you want to listen, it’s available here.  I hope to be able to post a code here in a few days (with the agreement of CPDcast) which will enable readers of this blog to listen for free.  It’s also worth looking at the rest of the site; they are very strong on information law subjects.


Who blacklists the blacklisters?

May 11th, 2009 by Timothy Pitt-Payne QC

In March this year the Information Commissioner took enforcement action against the Consulting Association, which had been operating a secret blacklist of employees in the construction industry, including details of trade union activity.  Today the Department for Business, Enterprise and Regulatory Reform has announced that new regulations will be introduced to outlaw the use of blacklists in this way.  There is a power to regulate under section 3 of the Employment Relations Act 1999, but so far it has never been used.  A consultation exercise is promised for early summer.  Draft regulations were previously prepared in 2003, and there was full consultation; so this time round the consultation will be shorter than the normal 12 week period.

It is very interesting to see such a direct link between action by the ICO, and new regulations.  The Government line had previously been that there was no evidence that regulations were needed.  The ICO has now provided them with their missing evidence.

Blacklists have a long history.  The Economic League attracted controversy in the 1980s (and was eventually disbanded in 1994); apparently it had a list of 22,000 political subversives, including one Gordon Brown MP.

Employment vetting is much in the news at present and is clearly attracting great interest.  We are currently considering an exciting project in this area:  watch this space!


Recent conference papers

April 30th, 2009 by Timothy Pitt-Payne QC

On 11 KBW’s main website, you can now find some conference papers delivered this month by members of chambers.

There’s a paper that I gave at a Northumbria University conference.  The theme of the conference was information sharing; my paper is about the new law on breach of confidence (post-Campbell v MGN).

Yesterday, the LGG/11KBW legal update conference took place, with about 115 delegates.  Karen Steyn gave a paper on recent case-law affecting local authorities; the first section is about information law.  I gave a paper about employment vetting.  In discussion, delegates were clearly very interested in getting to grips with the new ISA barring regime.  Questions were raised about its implications for elected members of local authorities, and for volunteers (e.g. parents helping out in schools).  

Another subject  raised in discussion was the recent decision of the Administrative Court in R(G) v Governors of X School and Y City Council.  A music assistant employed at a primary school was dismissed; the allegation was that he had formed an inappropriate relationship with a 15 year old boy who was on work experience at the school.  The school’s disciplinary committee told the employee that they would be reporting the case to the Secretary of State for potential inclusion in “list 99” (i.e. the statutory list of those banned from working in schools).  The Court quashed the decision because the school had refused to allow legal representation at the dismissal hearing or at a forthcoming appeal.  The disciplinary proceedings, and the referral to the Secretary of State for a potential banning direction, formed part of one and the same proceedings.  Those proceedings were not criminal in nature for the purpose of article 6 of the Convention.  However, their potential consequences were grave; and procedural fairness required the claimant to be allowed legal representation, before both the school’s disciplinary committee and its appeal committee.