Dave Smith has been blacklisted for trade union activities. Here he explains how the law favours employers
The Supreme Court has this week sent a letter to my lawyers refusing permission to appeal our blacklisting test case against Carillion (JM) Ltd.
At the original Employment Tribunal hearing, the company gave the judge a written document admitting that senior managers from the Carillion group had supplied information to my blacklist file because I was a trade union member who had raised concerns about safety on their building sites.
I still lost the case. This was because I was not directly employed by any of the companies that blacklisted me, but was an agency worker and therefore not protected by UK employment law. Even the original written judgement from Judge Snelson concludes: “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.”
This legal decision does not just affect me, it has an impact upon the millions of workers forced to work through agencies or on zero-hours contracts. It makes them second-class citizens when it covers to employment rights.
Even where the evidence of bosses’ wrongdoing is overwhelming, it is impossible for any agency worker to win Employment Tribunal claims of this kind because of a legal decision known as the “necessity test.”
This legal precedent — handed down by unelected judges — makes it all but impossible for anyone working through an employment agency to ever have a contract with the end user (ie the company they are actually working for).
At a stroke, this excludes agency workers from a raft of legal protection, including unfair dismissal.
There is a term in employment law called “automatic unfair dismissal,” reserved for the claims where an employee is sacked after standing up for their legal rights, such as making a complaint about not receiving the minimum wage.
Normally in unfair dismissal cases the claimant needs to have been employed for two years, but this is not applicable in these most serious cases.
Employment law provides this “day one” protection in case of reprisals from vindictive employers. But even in these examples that are considered to be “automatically unfair,” agency workers are still excluded.
This is most blatant in the case of trade union victimisation which is a basic human right enshrined in the European Convention on Human Rights. Its article 11 states that: “Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.”
Human right are supposed to apply to everyone but as my test case demonstrates, in UK employment law, article 11 only really applies to direct employees.
The legal loophole that allows agency workers to be unfairly dismissed, blacklisted and victimised for raising health and safety concerns with no legal redress whatsoever needs to be closed.
A legal team, including John Hendy QC, represented me in my test case, precisely in an attempt to break the log jam of the “necessity test” ruling. However, the Supreme Court ruling has slammed the door shut.
If change cannot be achieved by winning legal test cases, then Parliament will need to pass statutory legislation.
There are a variety of options available. The first and obvious option is to require all employment relationships to be brought under a single statutory regime with minimum terms and conditions.
By bringing agency workers and those working on the myriad of false self-employment schemes onto the same legal footing as direct employees, most of the systematic abuse of legal loopholes would be done away with.
As a very minimum, unfair dismissal laws could be amended to explicitly include agency workers. The fine detail of legislative change I will leave to others.
The Supreme Court letter arrived in the same week that two agency workers working at Canary Wharf and Oxford Circus were dismissed within hours of being elected as Unite shop stewards. But so long as the “necessity test” denies full equality before the law, bosses will continue to sack agency workers with legal impunity. This has got to stop.
Dave Smith is co-author, with Phil Chamberlain, of Blacklisted (New Internationalist).