Pay-per-go. Government puts whistleblowers in the firing line

Hazards 119, July-September 2012

Whistleblowers play a key role in exposing legal wrongdoing in the workplace, including potentially devastating and deadly safety abuses.
But a mixture of hefty tribunal fees and backdoor changes to the law are
set to make it easier for rogue bosses to fire anyone who speaks up.

Workers victimised for raising safety concerns will soon have to pay £1,200 if they want to seek justice at an employment tribunal.

Changes scheduled to take effect in summer 2013 and outlined in a 13 July 2012 Ministry of Justice response to a consultation include measures that mean anyone who believes they ‘suffer a detriment, dismissal or redundancy for health and safety reasons’ may be required to pay an initial fee of £250 and a further £950 if the case goes to a tribunal, the maximum ‘level 2’ charges under the new system.

EUROVISION A union campaign for a comprehensive law to protect union safety activists from blacklisting has led to the issue being progressed at the highest levels in Europe. Glenis Willmott, leader of the Labour group in the European Parliament and who took up the campaign after consulting with unions and the Blacklist Support Group, gave a cautious welcome to a July 2012 confirmation from the European Commission that, as part of its upcoming review of health and safety legislation, it will ensure that EU law is being observed and that health and safety reps are not being put at a disadvantage by employers. www.gleniswillmott.eu

A safety rep complaining of an employer ‘failure to pay for or allow time off to carry out safety rep duties or undertake training’ – denial of the legal right to safety rep training makes up the lion’s share of safety-related tribunal cases – will have to stump up £160 to kick off a case and a further £250 to take it to tribunal.

The same ‘level 1’ charges apply to workers complaining about an employer’s ‘failure to pay remuneration whilst suspended from work for health and safety reasons whilst pregnant or on maternity leave.’

TUC general secretary Brendan Barber said: “It is vital that working people have fair access to justice, but introducing fees for tribunals will deter many - particularly those on low wages - from taking valid claims to court. Many of the UK's most vulnerable workers will simply be priced out of justice.”

He added the government move means “workers will be more likely to be mistreated at work as rogue bosses will be able to flout the law without fear of sanction.”

But fees aren’t the only threat to workplace safety whistleblowers. The government is seeking to use the Enterprise and Regulatory Reform Bill currently before parliament to introduce a ‘backdoor’ change to the law on whistleblowing.

The one-line government amendment introduced in the Bill, which was presented to parliament on 23 May 2012, would mean disclosures made by whistleblowers would have to be “in the public interest” in order to protect the individual if as a consequence they are made redundant or suffer detriment.

David Lewis, professor of employment law at Middlesex University and convenor of the International Whistleblowing Research Network, has written an open letter to business secretary Vince Cable warning the amendment would inhibit potential whistleblowers from making important disclosures about wrongdoing.

“My prime concern with this amendment is that most people have a choice whether to blow the whistle or not and they will keep quiet if they think it is the safest and most sensible option,” he said. “What the Bill is going to do is drop a bomb on the whistleblowing provisions by simply saying there is now going to be a public interest test for all cases in all circumstances, which completely sabotages the legislation.”

He said that while a review of the legislation was needed, this change has been brought in “by the back door” without consultation. The amendments would apply to the section 43B whistleblowing provisions in the Employment Rights Act 1996.

Section 44 of this Act covers protection for safety reps raising concerns about workplace safety. It is believed the legal changes if introduced would have a dramatic impact on safety rights at work, leaving safety reps and whistleblowers without essential protection.

Whistleblowers’ charity Public Concern at Work says the “public interest” qualifier would apply to any whistleblowing, including where “the health or safety of any individual has been, is being or is likely to be endangered.”

Introducing fees in employment tribunals and Employment Appeal Tribunal consultation response, MoJ, 13 July 2012. https://consult.justice.gov.uk

Public Concern at Work

Fired after challenging unsafe work

A woman who was fired after challenging a management move she felt would leave her at risk of violence has won an unfair dismissal claim. GMB member Karen Seccombe, 48, lost her job as a social club steward after a dispute with her employer over attending burglar alarm call-outs at night on her own.

Karen had been employed at Great Western Railway Staff Association in Laira, Plymouth since 2006. In March 2011 the club changed its alarm provider and asked Karen to provide her personal mobile number as well as her home number for call-outs. Later she and her colleagues were asked to carry a mobile phone provided by the club so the alarm company could reach them.

Karen refused to pass on her personal mobile phone number or accept the club’s mobile phone because she felt she would be vulnerable if someone had illegally entered the building. During a meeting between Karen and the club, where the GMB member had union representation, the union highlighted the absence of a lone worker policy and agreed to write a policy on the club’s behalf. A few days later Karen received a letter dismissing her for “gross misconduct.”

GMB supported Karen in an employment tribunal claim. Exeter Employment Tribunal found in her favour, noting she had “raised genuine concerns about her health and safety, particularly as a lone worker at night following alarm calls”. It added that the club had failed to hold a fair and reasonable investigation into the matter and its appeals process was “shambolic”. The tribunal awarded Karen £18,000 in compensation for unfair dismissal.

Blacklister gets its man on HSE’s board

A blacklisted construction worker has expressed concern at the appointment to the Health and Safety Executive’s board of a top director with construction giant Laing O’Rourke, one of the companies named in a major UK safety blacklisting scandal.
Howard Shiplee, who joined Laing O’Rourke as an executive director in October 2011, took his place on the HSE board on 13 August 2012.

The Information Commissioner’s Office, which provided former site worker Dave Smith with a copy of a blacklisting file held on him by The Consulting Association, said Laing O’Rourke was one of the major firms identified by code numbers in his file (Hazards 107).

Smith said he “nearly choked” when he heard Laing had a director on HSE’s board. “Laing O’Rourke has one of the worst reputations in the entire construction industry,” he said. “They are proven blacklisters of union safety reps. If the HSE Board don’t believe me, I will be happy to send them a copy of my blacklist file, where the company they have just invited into their fold are specifically identified as supplying information.”

Also on Shiplee’s CV is a stint at Amec, a prominent user and supporter of covert blacklisting outfit The Consulting Association. He’s also worked for Carillion, a company criticised in an employment tribunal which rejected David Smith’s unfair dismissal claim on a technicality, as he had been blacklisted by Carillion subsidiaries, but was an agency employee at the time (Hazards 118).

Smith said the appointment of a top Laing director to HSE’s board compounded his dismay at HSE’s failure to “to take any action or even investigate the systematic victimisation and blacklisting of safety reps since the scandal was uncovered in 2009. Now the guilty men are making the policy decisions.”

Hazards blacklisting blog • Back to top

Liberty quest

The surveillance and blacklisting of thousands of workers, many targeted for their union safety activities, should be investigated immediately by the privacy watchdog, human rights watchdog Liberty has said. It has written to the Information Commissioner, Sir Christopher Graham, accusing him of inaction over a privacy scandal it compares to phone hacking. Liberty is threatening to go to court to force Graham to investigate the case. Corinna Ferguson, legal officer for Liberty, said: “If we cannot persuade the Commissioner to discharge his public duty, we will consider seeking assistance from the courts.” Back to top

Court action

Blacklisted workers in the UK have launched a High Court claim against construction giant Sir Robert McAlpine which could eventually be worth £600 million. In July 2012, law firm Guney, Clark & Ryan served a claim on behalf of 86 claimants for ‘Tort of unlawful conspiracy’ at the High Court. The claim targets Sir Robert McAlpine as the company with the worst record of blacklisting – but the conspiracy charge means the firm would also be responsible for the actions of the 40 plus contractors implicated in the scandal in an investigation by the Information Commissioner’s Office. Back to top

Secret curtain

Widespread use of the blacklist by construction giant Carillion has been exposed in a June 2012 report from GMB. Launching the report, ‘Blacklisting – illegal corporate bullying endemic, systemic and deep-rooted in Carillion and other companies’, GMB general secretary Paul Kenny said: “This GMB report pulls back the curtain of secrecy to give a glimpse how employers like Carillion have illegally used their power and money to blacklist citizens and to deny them their rights to employment. The report shows that the level of wrong doing and abuse around this blacklisting is the construction industry’s equivalent of phone hacking by newspapers and is equally serious.” Of the 3,213 people on the blacklist, 2,863 are still unaware that their details were held by The Consulting Association, the union warns. Back to top