Employment Law Advocates

An article in the Guardian reports on a fascinating case which began at the Manchester Employment Tribunal earlier in the week. It represents part of the fallout from the construction industry blacklist which I discussed in this post. Now many of the people affected (twenty three of them) have brought claims against the companies who put their names on the list in the first place. As I said at the time, there is no obvious remedy in employment law but there are some interesting submissions to be made.

Paragraph 355.02 of Division NI of Harvey on Industrial Relations sets out the basic structure of the argument. Workers are protected from being subjected to detriments on grounds related to trade union activities. From the case of Woodward v Abbey National, providing a negative reference is capable of being a detriment even where an employment relationship has come to an end and so the same must surely apply to the act of adding a name to a blacklist. However, there are two further problems in this case. Firstly, the claims are out of time by several years because the clock starts running from the date of the detriment. Secondly, there has only been protection for workers against post-employment detriments since the Employment Relations Act 2004 but many of the claims in this case precede the date of it coming into force. Furthermore, some of the workers were victimised by end users with whom they had no contract, and so they would seem not to qualify as workers, even under the amended law.

The time point is easier to deal with. There is considerable assistance from the decision of the Court of Appeal in London Borough of Southwark v Afolabi, in which a race discrimination claim was allowed to proceed when the claimant did not discover the relevant acts until nine years later. Afolabi concerned the extension of time on a just and equitable basis while, in this case, it will have to be shown that it was not reasonably practicable to bring the claims in time, but the point is certainly a persuasive one.

Moving on to the extent of the protection, before the changes, only employees were protected and only against action short of dismissal. When the amendments were made, the transitional provisions made it clear that they did not apply to detriments taking place before 1st October 2004. However, it is obvious that the main reason for the changes was criticism that the old law did not provide sufficient protection for freedom of association to comply with Article 11 of the European Convention of Human Rights. If so, perhaps the interpretative obligations in section 3 of the Human Rights Act will allow the unamended statute to be read in accordance with the current one and the transitional provisions to be disregarded.

This leaves the claimants who are suing end users in the absence of a contract. For them to succeed, either the definition of a worker would have to be extended further than it is in any other legislation or it would have to be found that human rights make it necessary to imply a contract to provide personal services, distinguishing James v Greenwich. Still, it would be rather surprising if they were not entitled to some sort of protection and so it is entirely conceivable that this case could end up in Strasbourg.