From 6 April 2014 the Employment Relations (Northern Ireland) Order 1999 (Blacklists) Regulations (Northern Ireland) 2014 came into operation which prohibits the blacklisting of trade unionists.
The Regulations make it unlawful to compile, supply, sell or use a 'prohibited list' (ie a blacklist).
Employers and employment agencies cannot:
- refuse a person employment for a reason related to a blacklist
- dismiss an employee for a reason related to a blacklist
- subject a person to any other detriment for a reason related to a blacklist
What is a blacklist?
A blacklist must:
- Contain 'details' about current or former trade union members or of persons who are taking part or have taken part in trade union activities. These 'details' could include names, addresses, National Insurance numbers, occupations or work histories.
- Have been compiled for employers or employment agencies to use in order to discriminate on grounds of trade union membership or activities when recruiting or during employment.
Blacklists would include any index or other set of items whether recorded manually, electronically or in other forms, and can include haphazard or unstructured collections of information with a common connection - such as a shared purpose.
You can act unlawfully if you indirectly access a blacklist. It may not be a defence for you to claim that you did not know you were using information from a blacklist.
Everyone on a blacklist is protected, even non-trade union members.
There are some incidences where the law does not prohibit blacklists. It is lawful if you:
- Supply a blacklist in circumstances where you could not reasonably be expected to know it was a prohibited list.
- Compile, supply or use a blacklist in order to draw attention to possible or actual blacklisting activity. For this to apply, no information about the person on the list should have been published without their consent, and the activity is justified in the public interest.
- Compiled, sold, supplied or used a prohibited list for the sole or main purpose of appointing or electing an office-holder in a trade union; or appointing a person to a post or office where the appointee must have experience or knowledge of trade unions, and it is reasonable to apply such a requirement.
- Compile, sell, supply or use a blacklist to comply with a statutory or legal requirement or to obey a court order.
It is also lawful to access a blacklist either:
- in connection with legal proceedings
- to obtain or provide legal advice about blacklisting compliance
Industrial Tribunals claims
If an employer is suspected of blacklisting, or an employment agency refuses employment based on blacklist information, they could be taken to an industrial tribunal or a court.
If successful in an Industrial Tribunal, the claimant could be awarded compensation.
A claim to a court can be made by anyone if they have suffered loss or been threatened by a potential loss.
If a complaint is successful, the court can award damages and compensation for injury to feelings. They are also empowered to make orders to stop organisations from blacklisting or using blacklists.
An individual cannot make a complaint to an Industrial Tribunal and the court in relation to the same conduct. However, if a complaint is made to an industrial tribunal, the same complainant could also ask the court to restrain or prevent an employer from blacklisting.