Are Companies that 'Blacklisted' Workers Trying to Buy Their Way Out of Justice?

Construction companies have paid out millions in compensation, but some workers are determined to see them in court.

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17 February 2016, 3:30pm

A blacklisting protest in 2013 (Photo author's own)

Blacklisting was the secret war that big business waged against workers. From the 1980s into the 2000s, if you worked on a building site, it was advisable to keep your head down. If you kicked up a fuss about 'elf 'n' safety or crappy wages, you could unknowingly find yourself put on "blacklist" of workers that companies wanted to make sure never got work. The practice was illegal but it carried on for decades. At least 3,200 people were treated in this way, and lives were ruined as skilled workers couldn't get a job.

Last week, some of the workers who have been fighting for justice received some landmark good news. For the first time, some victims received compensation totalling £5.6million pounds. The average payout to individuals was £80,000, with some receiving as much as £200,000.

You'd think this would be a cause for a cash-wad-fuelled cigars-and-champagne blowout of the kind that happens in movie montages and cause the protagonists to wake up bleary-eyed somewhere they don't recognise. But when I called trade unionist Dave Smith to talk about the payout, he was a little more circumspect. "Part of us is celebrating," said Dave, who was himself blacklisted. "Seven years ago they denied anything and didn't offer a single penny, and now some of us are being offered £200k, so there are some of us jumping for joy. Then there are some of us, like the 350 who haven't taken their offer, who are concerned that the way of the British justice system works means that companies can essentially buy themselves out of a trial."

If the companies manage to settle every case out of court, they won't have to go to trial, which could mean lower costs and less embarrassment.

Michael Newman, a solicitor with Leigh Day, a law firm involved in the cases, told me: "What is telling is how the companies have shifted their position over time: first they denied everything, then they set up a compensation scheme which was largely rejected by most workers and the unions, then they made an apology and limited series of admissions, then they started making better offers of compensation to everyone. This begrudging approach to the workers shows how the companies want to reveal as little information as possible, and minimise any compensation."

It's not just about money for these workers, but reputation. "The money represents a real triumph for many workers, as in many cases it is years' worth of pay", continued Michael. "However, it is only at the full trial in May where the public will see the details of exactly how the companies operated the blacklist."

Perhaps it's not surprising that companies don't want to hand over their info. In January, 30 companies were ordered to disclose all their emails about blacklisting. Among other things, this revealed that managers at Balfour Beatty referred to blacklisted workers as "sheep", which wasn't the best PR a caring company could hope for.

Then there's the fact that by avoiding court, the companies might be able to avoid exclusion from undertaking big public works. "You can be excluded from public contracts if you've committed grave misconduct, and that can include blacklisting," said Newman. The blacklisters run the risk of being blacklisted, so they're trying to pay their way out of it.

Fortunately for the companies involved, the British legal system has a mechanism that could help them avoid court – "Part 36 offers to settle".

Michael explained: "The rule is designed to put pressure on both the defendant and the claimant to accept reasonable offers. It's designed to prevent always asking for a bit more. In an ordinary negotiation you don't usually lose out anything by going back and saying, 'how about ten grand more?' How it works is if [you go to court and] you don't beat the offer made, you have to meet the other side's costs."

"I'm just making up numbers. Let's say the offer is £5,000 and maybe we think if we go to court we'll get £6,000 or £7,000. Chances are I'd advise accepting the £5,000 because you could walk out of court with £4,000 – so you'd win, but you'd have to pay the companies' costs."

In this case, those costs are astronomical. No longer making up the numbers, Michael said: "The companies' legal costs are at the minute in excess of £25million. That is not a bill that any one individual or any one union can pay."

Dave had to leave the construction industry at the height of the building boom, thanks to a blacklist file that was 36 pages long and ran from 1992 to 2006. That's what he got for complaining about unpaid wages and raising safety concerns about asbestos and overflowing toilets. And that explains his determination to have his day in court when the trial starts in May. "For some of us, it's no longer about the money, it's about wanting the directors of these multinationals who did this to us to give evidence in high court. That's our driving ambition at the moment."

@SimonChilds13

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