Saturday, 21 March 2015

Blacklist Law vs Justice?

Court of Appeal:  David Smith v Carillion

BLACKLIST campaigners have called for parliament to change the law after a Court of Appeal written judgement issued today (17th March 2015) failed to provide justice to an agency worker, even when the company admitted blacklisting.  The Smith v Carillion test case was based on Dave Smith, an engineer and safety rep for the construction union, UCATT, who was kept under surveillance by construction companies and the notorious Consulting Association, the body that orchestrated the building industry blacklist.  Smith was forced to leave the construction industry due to the blacklisting he suffered after complaining about unpaid wages and raising concerns about safety issues such as asbestos and overflowing toilets on building sites under the control of different Carillion Group companies in the 1990s.

The written decision was delivered by Lord Justice Elias, Lord Justice Fulford and Dame Janet Smith.
Paragraph 5 of the judgement noted that: 
'Carillion accepted that Mowlem had provided information about the appellant to the Consulting Association between 1997 and 1999; that it was for the purpose of penalising him for taking part in the activities of an independent trade union and acting as a safety representative; and that the provision of this information caused him a detriment.'  Adding 'the evidence against the company was very powerful.'
*Mowlem now trade as Carillion (JM) Ltd.
But despite this admission by Carillion, Smith still lost the Court of Appeal hearing because he was working on the site via an employment agency and is therefore not protected by UK employment law. Because Smith was not directly employed by the blacklisting firm, he was not covered by the legislation.
Paragraph 22 notes: “It is not against public policy for a contractor to obtain services in this way, even where the purpose is to avoid legal obligations which would otherwise arise were the workers directly employed. That will frequently .. be the reason why the employer enters into a relationship with an agency. A contract cannot be implied merely because the court disapproves of the employer’s objective”.

Smith was defeated by what is known as the "necessity test"which has been developed by legal precedents in Tribunal rulings by judges over the past few years. The effect of the 'necessity test' is to deny any agency worker the right to win a claim for unfair dismissal or in this case, victimisation for raising safety concerns -even when the documentary evidence of wrong doing is overwhelming. 
John Hendy QC acting on behalf of Smith has raised the issue of breaches of Human Rights.
Para 42 of the judgement notes “Section 3 of the Human Rights Act requires courts to interpret legislation so as to give effect to the rights conferred by the Act “so far as it is possible to do so”. In this case the submission is that the acts of the employer amounted to breaches of both Articles 8 and 11 of the European Convention on Human Rights protecting private life and freedom of association respectively; and in accordance with section 3, the courts should construe these domestic statutory provisions so as to give effect to those Convention rights”. 
But again because of the initial hurdle of the 'necessity test' the written judgement declares that "the Human Rights Act has no application to the particular complaints advanced in this case".
In Para 52, the judgement concludes by stating that : the test case“raised interesting and complex issues which may have to be resolved on another occasion”. 
Dave Smith commented:
"What is the point of employment law or the Human Rights Act? Even with mountains of documentary evidence and an admission from the company that they blacklisted me because I was a trade union member who had raised safety concerns, I still cannot win. This might be the law, but it is not justice. 
The endemic use of agency workers, zero hours contracts, umbrella companies and bogus self-employment means that millions of workers are being treated as second class citizens. If agency workers are denied their most basic employment rights and even human rights because of the 'necessity test', which was never introduced by government but is an invention arising from legal precedents by judges, then it is time for parliament to change the law". 
Dave Smith is secretary of the Blacklist Support Group and co-author of the book 'Blacklisted: the secret war between big business and union activists' published this week by New Internationalist. It was at the Smith v Carillion Employment Tribunal in 2012, that the police collusion with blacklisting was first publicly exposed. It was at the book launch for 'Blacklisted' held in parliament last Thursday, that undercover police officer turned whistle-blower, Peter Francis announced that he had spied on six trade unions while working undercover for the Special Demonstration Squad (to be the subject of a public inquiry announced by Teresa May). 
Case No: A2/2014/0395/EAT
Smith (appellant) v Carillion (JM) Ltd (respondent) and Secretary of State for Business, Innovation and Skills (intervener) 
Legal teams:

Mr John Hendy QC and David Renton (instructed by Declan Owens of Free Representation Unit) for the Appellant

Mr John Bowers QC (instructed by Clarkslegal LLP) for the Respondent

Mr Daniel Stilitz QC and Mr Tom Cross (instructed by Treasury Solicitors) for the Intervener

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