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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE
To be published as HC 156-viii
House of COMMONS
TAKEN BEFORE the
SCOTTISH AFFAIRS COMMITTEE
BLACKLISTING IN EMPLOYMENT
Tuesday 30 October 2012
Steve Murphy and Jim Kennedy
Evidence heard in Public Questions 841 - 915
USE OF THE TRANSCRIPT
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Taken before the Scottish Affairs Committee
on Tuesday 30 October 2012
Mr Ian Davidson (Chair)
Examination of Witnesses
Witnesses: Steve Murphy, General Secretary, Union of Construction, Allied Trades and Technicians, and Jim Kennedy, National Political Officer, Union of Construction, Allied Trades and Technicians, gave evidence.
Q841 Chair: Welcome to this meeting of the Scottish Affairs Select Committee. As you are aware, we are looking at the question of blacklisting, which came out of a series of hearings that we were having on health and safety, but we decided to divert into dealing with blacklisting.
Could I ask you just to start off by saying who you are and a little about your organisation, for the record?
Steve Murphy: I am Steve Murphy, General Secretary of UCATT, which is the union for construction workers, representing in the region of 84,000 members throughout the UK and Ireland.
Jim Kennedy: I am Jim Kennedy, UCATT’s National Political Officer.
Q842 Mr Reid: How widespread do you believe blacklisting is in the construction industry?
Steve Murphy: We think it is huge in the construction industry.
Q843 Mr Reid: Would that be in Scotland as well as in the rest of the UK?
Steve Murphy: The indications are that it is in Scotland as well as in the UK, yes. It is widespread throughout the UK.
Q844 Mr Reid: How did this first come to your attention?
Steve Murphy: I think that Jim can answer that better. I was not general secretary in 2009. Jim was involved.
Jim Kennedy: What happened was that in early 2009 we were contacted by the media in terms of the work that Alan Wainwright had been carrying out in what was very much almost a lone campaign, and much credit should go to Alan Wainwright for his efforts in exposing the activities of Ian Kerr. We were contacted by the media when the raid took place. Subsequently, of course, we made a number of comments to the media, but our executive sat down and decided what we could do in terms of a reaction to what was something that we knew had taken place. Everyone knew that a blacklist was operating in the construction industry, but physical proof wasn’t there until the ICO raided the Consulting Association.
In terms of UCATT’s reaction, we wrote to every single member on our database informing them about the existence of the blacklist, the companies involved and the measures that our members needed to take if, indeed, they wanted to access their blacklist, and also, if they were blacklisted and they had gained their files, what the union could offer them in terms of legal advice. We also produced many thousands of posters with the same information on them, which were put all round construction sites throughout the UK, informing any construction worker how to access those files. So that is how we became aware of it, really, through the efforts of Alan Wainwright, and, of course, the journalist on The Guardian who supported his campaign.
Q845 Mr Reid: Since the raid on the Consulting Association, is the prevalence of blacklisting still the same, less or has it got worse? Can you give us what your experiences have been since then?
Jim Kennedy: If you are asking is blacklisting still going on-
Mr Reid: Yes.
Steve Murphy: We believe that blacklisting is still going on. Just adding to what Jim said, we published "Ruined Lives", which has been brought to the attention of this Committee before, which is an important document. We thought blacklisting was bad then; we think it is even worse now. Coming out of this Committee as well, when only between 5% and 10% of the files were taken, we estimate that, potentially, there are 65,000 construction workers affected by this.
Q846 Mr Reid: So you believe that a blacklist or blacklists are still in existence and companies, when thinking of taking on employees, are still phoning people who manage the blacklists. Is that process still going on?
Steve Murphy: I am sure there is still a blacklist being used. However companies use it, I am sure there is still a blacklist being used in some form.
Q847 Mr Reid: Do you have any awareness of how the companies are using it?
Steve Murphy: In relation to blacklisting, let me go back a few years and I will bring into this discussion how companies used to use the blacklist. I will refer to one major company, which is Robert McAlpine. Robert McAlpine was a big blacklister. I want to explain some of the receipts that we found about Robert McAlpine and it will lead me on nicely to where I want to take this issue in exploring it a little bit further.
In the first quarter of 2007-8, that is January to March, Robert McAlpine was invoiced for £5,218.40 for blacklisting checks. In the first quarter of 2008-9, that is April to June, Robert McAlpine was invoiced for £5,951 for blacklisting checks.
In the second quarter of 2008-9, that is July to September, Robert McAlpine was invoiced for £12,839.20 for blacklisting checks. This figure was a lot higher than other quarter invoices for any blacklisting firm. This is a total of 5,836 individual blacklisting checks during this quarter. That is 65 checks being done per day, seven days a week.
Let me go on to say that in March 2008 the ODA announced that work on the Olympic stadium would begin three months ahead of schedule, with work starting in late May 2008. Therefore, Robert McAlpine’s surge in blacklisting checks corresponded with the large-scale recruitment on the building of the Olympic stadium. I would therefore suggest, and my union would therefore suggest, that taxpayers’ money meant to be spent on the building of the Olympic stadium-the centrepiece of the Olympic games in 2012-was instead spent on blacklisting construction workers.
I would like to make a further point, if I may. This is a press release from the ODA of 7 October 2008, which says: "More than 2,700 workers are currently on site building the venues and infrastructure for the London 2012 Games." That is very important in our view to show that there was a blacklisting campaign through Robert McAlpine on the Olympic games site.
I would like to add something further, which is a quote from the ODA chief executive, David Higgins, who said: "We are working closely with our contractors and partner organisations to help ensure that alongside a physical legacy of world class sporting venues, new infrastructure and a new park, the Games can also help local people build new career paths long into the future." Our view on that is that, sadly, a lot of people would have been blacklisted so that they couldn’t build a career path.
Q848 Chair: On this specific point, what proof is there that this money paid to the Consulting Association was actually for checks on workers as distinct from a contribution to the annual night out, annual subscription fees or anything similar?
Steve Murphy: Because we have an invoice here that tells us that McAlpine spent £12,839.20-it is in this as well-on checks.
Q849 Chair: On individuals?
Steve Murphy: On individuals.
Jim Kennedy: At the very best, Chair, that sum may have included their annual subscription-perhaps-but that is at its very best.
Steve Murphy: This is the Scottish Affairs Committee. If I may say, Robert McAlpine, at the very same time, was involved in the M74 project. So it may not just have been the Olympic games; it may have been the project in Glasgow as well.
Q850 Chair: Apart from this question of the amount being invoiced, there is no proof, is there, that this was actually used for checking workers?
Steve Murphy: It would be foolish for us to say that it wouldn’t be. How coincidental is this?
Chair: I understand that.
Steve Murphy: We have major projects. We are having a huge recruitment drive into construction, and we have more than doubled the invoice at that very particular time.
Q851 Chair: I understand. We are going to be inviting people in at various times and we are going to be putting various things to them. It is quite likely that people will say, "Well, no, we didn’t." In the absence of any proof whatsoever-I appreciate that until the Consulting Association’s files were discovered there was no proof and until somebody blew the whistle there was no proof-one of the issues facing this Committee is that a number of members have suggested that this is something terrible that happened in the past but it is no longer going on. In those circumstances, we have to be clear, if we want to make recommendations about legislative change, that this is still an ongoing problem. That is why, on a number of occasions, we are likely to ask you whether there is any evidence that it is still taking place.
Jim Kennedy: If you look through the invoices-it is what the companies were invoiced for around that period-there are two distinct spikes around that time. One is Robert McAlpine. There is a spike also for Cleveland Bridge on one of the other quarters as well. If it was, for instance, some sort of function-I can’t imagine this secretive organisation having such a thing, but maybe they did-the fact that there is this spike right in the middle of the financial year that coincides with the mass recruitment on the Olympics is really a cause for concern. It is our proposition that this was blacklisting on an industrial scale.
Q852 Chair: Following on again from the point, before I come back to Alan, you have mentioned various bodies involved with the Olympics. Presumably, you have raised this with them. Have they responded in any way to this? Do they concede the points you are making?
Jim Kennedy: No. Many people throughout the construction of the Olympics, predominantly the blacklist support group and Dave Smith, raised concerns about blacklisting on the Olympics. They were generally ignored in terms of their representations. No one wants to admit that, probably, the biggest project in Europe was subject to industrial blacklisting.
Chair: I understand that. Iain wanted to come in and then we will come back to Alan.
Q853 Iain McKenzie: When you discovered that an invoice had been made for these checks, just an invoice for checks could really be anything, but you are making the assumption that it was checks on their backgrounds and so on. Was there any trace back to people not being hired who were checked?
Jim Kennedy: The problem is, of course, that only about 198 files have been requested that have been given to blacklisted workers. Until the files are out, open and unredacted, it would be very difficult to say that worker A was blacklisted on that particular project. The correlation that we are making is, we believe, absolutely evident as to why McAlpine had this sudden spike in checks to the Consulting Association at the same time as there was mass recruitment on the Olympics. It would be very hard to argue any other rationale than that.
Steve Murphy: It is just too coincidental that there is such a huge spike at that time.
Q854 Iain McKenzie: Could any of your members who had applied for employment at the Olympics and who were refused employment be traced to these checks by you?
Steve Murphy: We couldn’t, could we?
Jim Kennedy: There are individuals. I know that Dave Smith will have names of those people because demonstrations were held outside the Olympics.
Steve Murphy: We couldn’t give you that, but there will be individuals who will have that.
Q855 Mr Reid: Moving to the period after the raid on the Consulting Association, what evidence do you have that blacklisting has continued since then?
Jim Kennedy: There is anecdotal evidence that people are still having great difficulty in getting on sites-trade union activists and so on. Just like before the Consulting Association was raided, we didn’t have any hard evidence; all we had was anecdotal. If you speak to active trade unionists in the construction industry when they try and get on site, even today, they have great difficulty. The problem is that Kerr operated and oversaw the blacklist files in collusion with 40-odd major contractors. Do we think, following the raid and following Kerr’s £5,000 fine, that all the files disappeared, that they retired to the south of France or something like that? Absolutely not. It’s not the nature of the beast. They want the control. They want to control everything on site. They want to control the health and safety regime and organised labour there. So the nature of the beast wouldn’t allow it to just stop.
Q856 Mr Reid: Would you tell us what type of anecdotal evidence you have?
Jim Kennedy: We’ve got some from Scotland.
Steve Murphy: We’ve got some from Scotland. I can name one person. Another person doesn’t want to be named, which shows the fear that individual still has. Paul Mooney has been active in both construction and shipbuilding. Following an involvement in an industrial dispute to improve safety conditions of those working on site, he was told in no uncertain terms by a local shipbuilder that he would never work on their ships again. When the same local shipyard won a new order and was advertising for local joiners, Paul Mooney applied but he could not access work there. He was told that he had no chance of getting any work in that yard ever again.
Q857 Mr Reid: Was that the yard where he had previously worked?
Steve Murphy: Yes.
Q858 Mr Reid: Has he applied for jobs with other employers and found the same problem?
Steve Murphy: He has. The member knows that he has been blacklisted but cannot yet prove his case. The evidence that we have heard from this Committee, as I said earlier, is that only between 5% to 10% of the files were actually obtained. So, when people have written in to see if they’ve been blacklisted, there is no recorded evidence and there isn’t going to be for a huge number of people. These people have written in but have not been able to see if they are on the blacklisting list because so few numbers were obtained.
Q859 Chair: I want to follow up on this question about what a blacklist is. I ought to declare an interest as I know Paul Mooney and he is now working on a site in my constituency.
Steve Murphy: That is right. He is a UCATT convenor.
Q860 Chair: He is a convenor, yes. If somebody is told by a particular employer that they will not be employed again by that employer, that is not quite the same thing as the existence of a blacklist that any other employer can access to refuse them employment. We have always tended to take the view that blacklisting was a comprehensive list that other third parties could access rather than a single employer saying, "I’m not taking you back", and then they didn’t take them back, if you recognise that distinction. The issue, perhaps, about Paul Mooney and the shipyards falls into the former category of a single employer rather than it being evidence of a blacklist operating across the industry.
Jim Kennedy: Chair, the point is that, although Paul was refused employment at that shipyard, he was also struggling to get employment anywhere else at the time. I fully understand your point, but the implication is that information was being exchanged or traded.
Steve Murphy: Chair, we also have to remember, haven’t we, that when somebody has been blacklisted already and they are known to companies throughout the country, perhaps, because of what happened previously, people are still going to find it difficult to get work and they are finding it difficult to get work with those companies? Whether there is a tangible blacklist, people know of individuals who are shop stewards and safety reps, so, because they were blacklisted in the past, the chances are that they will be blacklisted in the future as well.
Q861 Mr Reid: How many of your members have reported to you that they are in Paul Mooney’s position and aren’t able to get work because they think that they are on a blacklist?
Steve Murphy: We have had huge numbers, as I said earlier, of members coming to us thinking that they have been blacklisted, but it’s difficult to get the information that they have been blacklisted. We have members throughout all the regions who find it difficult to get work but can’t actually say, "I’m on a blacklist list."
Q862 Mr Reid: Are you able to estimate how many?
Jim Kennedy: What-how many cases we’ve taken?
Mr Reid: Yes.
Jim Kennedy: No, but we can get that information for you.
Q863 Mr Reid: If you could send that information to us, we would be grateful. You said earlier that some of your members had written to the Information Commissioner to ask if they were on the Consulting Association’s blacklist and were told that they did not have any information on them. Are you able to put a rough figure on how many of your members were in that position?
Steve Murphy: No; I am sorry.
Jim Kennedy: No.
Q864 Mr Reid: If you had the records, would you be able to?
Steve Murphy: No, because it was down to individuals to actually do it.
Q865 Pamela Nash: Would you tell us more about UCATT’s initial response in 2009 when the Consulting Association’s files were published?
Jim Kennedy: Okay. I followed it up to a certain point where we had the poster campaign. As political officer, we engage with the Government of the day in terms of the draft regulations. The regulations, as presented to us, were clearly inadequate and offered no protection. We lobbied quite hard and we told them that. We pointed that out through the consultation process. "Ruined Lives" was our submission to the consultation process and still today is the authoritative document in terms of the way forward.
We even took the unprecedented step at one point, when the regulations went to the Joint Committee on Statutory Instruments, to write directly to all the members of that Committee telling them that there were real concerns in terms of human rights. There were representations made by organisations like the Heating and Ventilating Contractors’ Association, who said that they wanted to oppose any strengthening of the regulations because they still required the need to weed out troublemakers through their vetting process. We believed at that stage that they had the ear of the relevant Government Department. The Joint Committee on Statutory Instruments sent the regulations back to the Department-I think it was unprecedented, to be perfectly honest, that that happened-seeking clarification of the human rights issues. Subsequently, about a week to 10 days later, they went back and they nodded them through.
That is what we did. We made strong representations to the Government about the regulations, we produced the document and we advertised it as far and wide as possible to notify any building worker on any site of the existence of the blacklist. Of course, in my role as the political officer, we made a strong political lobby on it, yes.
Q866 Pamela Nash: Is there anything you would like to add?
Steve Murphy: No.
Q867 Chair: You do seem to have been singularly unsuccessful in getting your members to write in. You will have seen the evidence from the Information Commissioner about the relatively low number of people who are on the list who have been in touch with them. I wonder whether there is anything else that you believe could be done. We know from the meeting that we had with the GMB that lawyers are seeing things and so on.
Jim Kennedy: I attended a meeting with the ICO about two weeks ago with our solicitors, and the information that the GMB is able to access we are able to access now. We signed confidentiality agreements where we will be getting an encrypted disc, but all that is on the encrypted disc is the name, location and trade. We will cross-reference that with our database. If there are any names of a similar nature, we will be writing to those members to try and get them to apply for their blacklist files, if indeed they have one. That is a new initiative, but you are right. The amount of construction workers who have applied for their files was relatively low-absolutely. We did a lot; we might have been able to do more.
Chair: I am not disputing you. It is just that I am not clear.
Jim Kennedy: At the time it was a measured approach.
Steve Murphy: It is not in dispute, is it, that relatively few numbers wrote in to get the information?
Chair: No; that is right.
Steve Murphy: That is absolutely correct. It is also not in dispute that there are a large number of construction workers who are actually blacklisted.
Q868 Chair: There is an issue of proof. Clearly, a number of people have died, dropped out of the industry and all that. We had a couple of people in here from Dundee who have now moved out of the industry. They had actually checked, but quite a lot of people wouldn’t.
Q869 Pamela Nash: Just to correct my last question, I should not have said "when the list was published"-obviously it hasn’t been-but "when it was uncovered". Do you think there is anything more that the Information Commissioner’s Office should be doing to ensure that all those on the list are contacted?
Steve Murphy: Yes.
Jim Kennedy: Yes. They should write to every single member on the database.
Q870 Pamela Nash: Have you made any estimate of how many of your members are on the list? You had an estimate earlier of the percentage of those who are blacklisted who have actually been uncovered. Could you tell us where that estimate comes from?
Jim Kennedy: That is an impossible figure. It is very difficult. I would say that everyone who has ever been a trade union activist in the construction industry would be on that file.
Q871 Pamela Nash: Is that where you get that figure from? You said earlier that you thought it was only about 5% of those who had been on the list.
Steve Murphy: No.
Jim Kennedy: The point is that, when the ICO gave evidence to this Committee, they said that they only seized between 5% to 10% of the files because that was all their warrant allowed.
Q872 Chair: What we are still not clear about-upon reflection, we have gone back and looked at that evidence-is whether the other 95% were in other industries or whether or not they were also construction workers and they only needed a certain amount. Upon reflection, we are not entirely clear what they were saying to us about what their warrant specified. I didn’t quite understand why they couldn’t have seized it all. We will be pursuing that with them.
I want to follow up one point relating to that period and ask you for your views on enforcement orders and the way in which that side of things worked. Do you believe that that was adequately done by the Information Commissioners?
Jim Kennedy: No, absolutely not. Let me give you an example of a company that escaped without an enforcement order, even though the enforcement orders in themselves were fairly-there is no penalty or punishment from an enforcement order. It wasn’t even a slap on the wrist.
In April 2009 I was a party to a meeting with Skanska senior executives. It was with a fellow called Mats Williamson, who was the executive vice president of Skanska, and a chap called Harvey Francis, who was the executive vice president of Skanska UK. In those discussions we talked about the activities of their HR director, a man called Stephen Quant, who was, following an internal investigation by Skanska, identified as a named individual who dealt directly with the Consulting Association. They also mentioned an unnamed second person, who, apparently, held the position of a security manager in London. Those were the two points of contact at the time.
I have to say that at that meeting they were deeply embarrassed by the whole scandal and were asking us, "What can we do to make things right?", you know, in terms of future processes. What had come out of their internal investigation-and they were adamant about this-was that Stephen Quant had assured him that he had only ever requested information concerning health and safety issues. There was no record of any communication between Skanska, Kerr and the Consulting Association. Apparently, all the communications had been done via fax or telephone. That is an important point when you realise what I will be coming to in a moment.
Following that investigation, they produced a factual summary in which they made a number of quotes. They said: "There is no record of who, if anyone, was declined engagement or the reason for it." "However", the report later states, "the Skanska staff concerned are adamant that a CA check never resulted in a direct employee being refused employment." This is their inquiry in early April 2009.
The final section of the report states: "All current employees who were interviewed stated that they never passed information to the CA in respect of people who worked on Skanska sites." So they only took information out. It was strictly around health and safety issues, but they used some terminology that I will come to.
Following their representations to the ICO, they state in a European works council report from 4 November 2009: "The Information Commissioner informed us that he had decided not to take" any "enforcement action against Skanska in the light of our representations." So Skanska, the biggest blacklister, with an identified serial blacklister in Stephen Quant, were not even issued an enforcement notice. Also, from their initial investigation, they still stuck by the line that they only requested information to ensure safe sites and never fed information in.
In the presentation that went to the European works council, it states: "No data was supplied to the Consulting Association by Skanska." However, in a much smaller font size, immediately underneath, it says: "This was later found to be incorrect and the matter was dealt with internally." So now we have an admission that they did feed information in to the Consulting Association. They had escaped an enforcement order, for what good an enforcement order would do, but later admitted to a European works council that they fed information in. Thus, we would say, they blacklisted people. We believe that that admission, in documentation from a European works council presentation, confirms Skanska and Stephen Quant as serial blacklisters. That was 4 November.
On 20 November, some two weeks after Harvey Francis gave that presentation, he gave an interview to People Management magazine, where he said: "Skanska used blacklisting database for health and safety reasons." He went on to say that they needed "to ensure the safety of people working on our sites-not to blacklist people on the grounds of trade union membership as reported in the press." So, even two weeks later, after the admission in the works council that they fed information in for blacklisting people, the public side of Skanska was still saying, "No, we’re not."
There are a number of important points here in terms of Skanska. One is that, if you look throughout 2008, they made on average 35 checks a day for 365 days that year. That would have been Stephen Quant doing that, by admission from the two senior executives. How, as they told us, was Stephen Quant allowed to destroy any of the records of his dealings with the Consulting Association? We don’t believe that is true because some months later they found out from evidence, some documentation, conversation or something that that wasn’t actually true because Quant was feeding information in. So something came to light in that period between April and November. Maybe all the documentation wasn’t disposed of by Stephen Quant.
The questions for Skanska were: who authorised the payments to the Consulting Association? Did Mr Quant have sole authority to do that? What representations did Skanska make to the ICO that allowed them to escape without an enforcement order, when, clearly, they were the biggest proven blacklisters, because the records show that they had the most dealings with them? Between April and November, when it was discovered that Skanska had been feeding information in, why didn’t they inform the ICO? Why didn’t they tell them that their previous representations, if it was purely about health and safety, were wrong? Clearly, someone was feeding information in. Finally, how was the matter dealt with internally by Skanska? Were the guilty parties allowed to leave? Were they allowed to leave with a pay-off? The point is that shortly after, around that period, Stephen Quant left the employ of Skanska.
There is an example of how the biggest blacklister in the industry escaped an enforcement order. If we take Harvey Francis and Mats Williamson at face value and say that they didn’t know at that point that someone was feeding information in, why didn’t they hold their hands up at that time and tell the ICO, "Actually, we had an individual or individuals feeding information into the Consulting Association"?
In terms of enforcement orders, the ICO wrote to them, and on a voluntary basis companies were allowed to reply or not reply. A number didn’t and subsequently didn’t get enforcement orders, but the criteria of the enforcement order left a lot to be desired. That is just an example of how the biggest blacklister in the industry escaped any form of punishment.
Q873 Chair: It is fair to say, then, that you are not a fan of enforcement orders.
Jim Kennedy: Not these ones, Chair.
Q874 Chair: We will have to come back to the point about making recommendations at some stage. You have outlined to us a number of points. Let me ask some follow-up points because some things about this confuse me. I am not clear whether or not Skanska is applying the "rotten apple" defence in saying, "There was one rotten apple in the organisation, and nobody else knew about it. It was only him", and how that ties in with, as you said, what you said about it being 35 a day, every day, all year. I am not clear how any one individual could have had enough information to ask about 35 a day, every day, because there must have been some sort of mechanism whereby these things were fed to him.
Jim Kennedy: You would have to ask Skanska. In their internal report, it says: "Skanska (as Trafalgar House) first started using the referencing service where the supply chain was unknown. The service was only used by certain operating units and over time its use has diminished with most operating units having stopped using the service some time ago. Construction Public has used it up until March 2009. It was used by SRW", which is another operating unit, "(stopped using in May 2008), by Cementation (stopped in 2006), by Richard Lees (stopped in 2002) and by Clark & Fen (stopped 1993). It has never been used by Construction Private, Skanska Technology, Utilities North, Utilities South, Infrastructure Services or by Skanska Corporate."
If you look at that, at one point it was pretty widespread across all operating units in Skanska. There was, obviously, one point of contact, but a lot of people would have been feeding into that one point of contact-i.e. Mr Quant.
Q875 Chair: Presumably, you put this to the company, did you?
Jim Kennedy: We spoke to them.
Q876 Chair: What did they say to the idea that it was more than just simply a rotten apple?
Jim Kennedy: When we met them, we didn’t have that report. We also didn’t have the European works council one. When they came to see us, they told us, "Yes, we did subscribe to the Consulting Association. Yes, it was Stephen Quant. However, we have assurances that he only took information out to ensure safe sites." Even at that meeting it was clear that they were embarrassed with that line, I believe anyway; that was my assessment of the meeting. Subsequently, they made a public statement soon after that meeting that they condemned blacklisting and it would never darken their doorstep again.
Chair, if we want to have a look at Skanska in specific terms, they were still using the blacklist up to early 2009. So just before the raid they were still using it. The second contact on the blacklist files for Skanska-and we know this from files that members and blacklisted workers have accessed-had the initials "JD". Of course, the initials "SQ" for Stephen Quant were prevalent throughout the files. From accessed files already, we have reasonable suspicions that they operated a blacklist on these following sites. This is important because, like the Olympics, it was public money. I am talking about the MOD Whitehall between 2001 and 2002; MOD Woodbridge in 2005; Derby Hospital PFI in 2006 and, from accessed files, at least three workers who took out employment tribunals were subsequently put on a blacklist by Skanska.
The point I am trying to make, Chair, is that you talked about enforcement orders. My goodness, the biggest blacklister in the industry escaped without even-
Q877 Chair: This must have been authorised by the company at a fairly high level. It is difficult to imagine that Stephen Quant was simply doing this on his own in isolation, without the knowledge of people above, below and around him. Is that fair?
Jim Kennedy: I would suggest that you would have to speak to Skanska-Harvey Francis and Mats Williamson-about those because we couldn’t possibly say. We’ve no information to say how far up the hierarchy the authorisation was known. Clearly, if Stephen Quant was allowed to sign off checks, in every organisation someone is accountable for that, and Skanska would be no different.
Q878 Chair: You have an ongoing relationship with Skanska, do you not?
Jim Kennedy: Yes; absolutely.
Q879 Chair: They are still there, as it were.
Jim Kennedy: Yes.
Q880 Chair: You mentioned that some points have come to light subsequently. Have you subsequently raised those points with them, or when you had the initial dialogue was that the end of that matter and then it was not quite business as usual but business on a new basis going forward?
Jim Kennedy: That was the meeting that took place. There were no subsequent meetings. Obviously, the European works council revelation late in 2009 didn’t immediately come to us. That came some months later in the presentation. As I said, that single sentence was in a lower font text-
Q881 Chair: I understand the significance of that. But you, as a union, have never raised that directly with Skanska, saying, "The information we have now contradicts the information you gave us then."
Jim Kennedy: No.
Q882 Chair: We will want to pursue some of this. In terms of the background of the people involved, it has been suggested to us that some of the information must have come from official sources, whether or not it was police, military or something similar. I am not aware of the background of some of these individuals. Is there anything that you can cast light on?
Jim Kennedy: Stephen Quant had a senior military background before he came into the industry. I don’t know at what level, but it was a senior military background. I believe it was the Guards or something.
Q883 Chair: Okay; we can check that later now that that information is helpfully on the record. There were a number of points that I wanted to raise with you, and we have covered most of those. Pamela, you had finished your points. Iain was going to ask you something, but he has had to leave the room for a moment.
You have described the legislation that was introduced in 2010 as "disappointing". Could you clarify why you thought it was disappointing and what you would want to see in it?
Steve Murphy: It is disappointing. I have to say that UCATT believes that the regulations should provide that it is a criminal offence for a person to compile, store, sell, maintain, distribute or use information derived from prohibited blacklists with a view to discriminating against an individual on the basis of their trade union membership or activities, or perceived trade union membership, or activities. Also, any individual whose name has been included on a prohibited list should be entitled to compensation, including a minimum award. It should not be necessary for a worker to demonstrate that a detriment has taken place before they have redress under the regulations. As we have said, Chair, this is ruining people’s lives and we need the legislation to be tight and solid. People who have been discriminated against should have an award, and that is what we want to see.
I am not stopping there. I have to say this from UCATT’s perspective. UCATT is campaigning for a public inquiry into the blacklisting scandal and we will continue to campaign for a public inquiry. Whatever comes out of that public inquiry, we want those as a minimum standard in legislation.
Q884 Chair: Our view, having discussed it informally before, is that we would not be opposed to a public inquiry, but we do recognise that a public inquiry is not necessarily going to be accepted by the Government and would take a long time. In the circumstances, we are more likely to come forward with firm recommendations about what should be done now, irrespective of a public inquiry. Therefore, we are interested in drawing forward recommendations that we can make now on the evidence that is available without, necessarily, waiting for a public inquiry.
Can I clarify whether or not the sort of points you were just making about how you would want to see the legislation changed are points that are shared with the other major unions involved, by which I mean Unite and the GMB? It is much more difficult for us if we have three competing choices about which route to follow to block this off. It would be far better if those who are on the receiving end have an agreement about the best way to progress this matter. Is there a joint agreement about how these matters should be dealt with?
Jim Kennedy: Within "Ruined Lives", Keith Ewing set out the way forward for legislation. I know that, when Unite gave evidence here, they referred to the document and fully supported what was in it. I know that the GMB at the highest level also supports the document. We’ve not sat around a table and ticked them off, but everyone supports the recommendations.
Q885 Chair: This is an iterative process. As we discover things, it may very well be that we will write to some of the organisations that have given us evidence and clarify whether or not each agrees with the recommendations of the other in order that we can identify whether or not there are disagreements, and, if so, if necessary, come to a choice between them, or if, ideally, we have everybody agree, that makes our job, in a sense, much easier. As you will appreciate, you and the other unions have much more experience in dealing with these sorts of things than we have. Perhaps you could bear that in mind.
Steve Murphy: If I might reiterate what Jim has just said, "Ruined Lives" outlines what I have just said in there. The other trade unions that have been affected by blacklisting have cited this document, as you know.
Q886 Chair: Fine. I remember that document coming out some considerable time ago, but things move on. I wasn’t sure whether or not people wanted to expand on it.
Jim Kennedy: Chair, I understand that in your position you want to move on in terms of making recommendations, but, just like prior to Leveson, everyone had their ideas of what should come out in terms of legislation, but no one will know until that inquiry has finished. That will inform what legislation is required. What we are saying is that a public inquiry into the blacklisting scandal will also inform what legislation is required.
I genuinely think that we haven’t seen anything yet. If we have a public inquiry, stuff will be coming out that we couldn’t even comprehend. As recently as your last evidence session, no one knew that the ICO had only seized 5% to 10% of the files. From the files we know about already, it is not just construction workers. There are academics and journalists. This situation really does need a public inquiry to help inform that legislation, notwithstanding and understanding your concerns for the Committee.
Q887 Chair: One particular point is that on your website you mention that under the 2010 regulations blacklisting is described as "unlawful" but "they did not make blacklisting a criminal offence." Can you explain the distinction between these two points, because, when we looked at it, that seemed to us to be the same thing? It is just in case there was a subtlety there that we had missed.
Steve Murphy: No.
Jim Kennedy: No.
Q888 Chair: If there is something, then, maybe, upon reflection, you can let us know. It is just that we ourselves were not clear.
Jim Kennedy: If you read "Ruined Lives" in terms of where it talks about making it a criminal offence, I think that Keith Ewing is quite clear, if I can find the relevant section for that.
Q889 Chair: We will find all that evidence. That is what the clerks are for. They will find all that evidence and bring it forward. That is just one particular distinction that we were not quite clear about.
The next point that Iain was going to make was how you would like to see the legislation on blacklisting strengthened, but I think we have pretty well covered that.
Jim Kennedy: We need a free-standing right not to be blacklisted. You will be aware that we have got a case going on appeal to the European Court of Human Rights. As a free-standing right in terms of human rights, that should be enshrined in law.
Q890 Pamela Nash: I was going to ask a similar question. It is for your members watching this and listening to this evidence later on. For me, it is clear from the current legislation that it is unlawful for an employer or an employment agency to access a blacklist and use that when making a decision as to whether to employ someone or not. In making the actions criminal offences that you mentioned earlier, what exactly would be the benefit of that?
Jim Kennedy: It is not illegal to collate and keep a blacklist. By definition, why would you do that unless you were going to use it? It makes no sense. That is why it should be made a criminal offence right across the board, as Steve mentioned. Why on earth would you have a blacklist unless you are going to use it? I think that covers your point.
Steve Murphy: It absolutely does. Jim is right on that. Why?
Q891 Pamela Nash: Thank you. Just to move on, we have heard other evidence in this inquiry that companies have either changed their names or completely re-registered as a new company when it has been made public that they have been involved in blacklisting. In your experience, has this affected any prosecutions or investigations into these companies? Also, are there any ideas you have for us as to how we could combat that?
Steve Murphy: I am not so sure about the prosecutions. I don’t think there have been any prosecutions.
Q892 Pamela Nash: But do you think this could be a stumbling block?
Steve Murphy: We have seen phoenix companies. Chair, you talked about health and safety earlier where companies have broken health and safety legislation and somebody has died, the company has received a small fine and set up a new company. It is a stumbling block in that sense where people have set up new companies. I guess it is a stumbling block in that people can set up a company in a new name and try and avoid any legislation.
Jim Kennedy: One of the points that Skanska raised is that they inherited the blacklist through acquisition and the companies they acquired subsequently disappeared into the overall Skanska organisation. In terms of that, it would present problems, I am sure; absolutely.
Q893 Chair: These are important issues that we will have to have a look at, but this can’t be the only situation in which the question of phoenix companies, absorption and so on applies.
Iain was also going to pick up the point that I can maybe do about clarifying whether or not you provide any support for your members who have been blacklisted. I am aware that you have been taking some legal cases, but could you outline, in general, for us what you do for them and with them?
Steve Murphy: We have given legal support and, as you have rightly said, we are going to the European Court. As we have said earlier, it is very difficult to identify individuals who have been blacklisted or individuals whom we have found to have been blacklisted. We will always give legal support where we can. The difficulty is, is it not, in the blacklisting cases that people don’t find out that they have been blacklisted until years down the line? It is very difficult to take, as you know, a case to an employment tribunal because of time limits. You have three months from the time of knowing. These people were blacklisted 10, 20 or 30 years ago. That is a difficulty we have in supporting our members legally, but, wherever we can give them support, we will give them support legally, obviously.
Jim Kennedy: Are you asking, Chair, if we try and access work or anything like that for them? If that is what you are asking, no, we don’t, because that is not something we can do.
Q894 Chair: We are just giving you the opportunity to tell us whether or not there is anything. Maybe I could just come back to your point. We understand your difficulties, but, presumably, if people have got to notify or start the tribunal process within three months of knowing, irrespective if it is 20 or 30 years down the road, they would still be able to pursue that, wouldn’t they?
Jim Kennedy: Absolutely; yes. There is a difficulty, and we have had it in a number of cases, where they have got hold of their files and, unfortunately, sat on them for a number of weeks, and because of the three-month period they have been out of time. Maybe that is something we have to look at in terms of our own systems in rectifying for the future. The profile of the blacklisting scandal is growing on a daily basis and more construction workers will be attempting to access their files. So maybe we as an organisation have to get our systems absolutely tight in terms of meeting that three-month period.
Q895 Chair: What would your argument be-that that three-month period ought to be much longer in situations where the cases are quite a distance away?
Jim Kennedy: Absolutely. Hopefully, it would come out of some sort of legislation where there should be-
Steve Murphy: An extension.
Q896 Chair: We want to be clear about these things. In the absence of a public inquiry, as I have said before, we will have to make recommendations, and we would want to clarify whether or not that was one of the issues. One of the issues that have been drawn to our attention is the number of people who have been blacklisted who cannot take action against the main contractor because they are working for sub-contractors, and the main contractor has sometimes been the one, allegedly, that has blacklisted. What is the way round that?
Jim Kennedy: It is in terms of the changes to legislation, as Steve laid out, in the terminology in compiling, keeping, using and so on a blacklist file. That is the only way you can get round it. I know that Dave Smith was blacklisted by a third party. Therefore, there was no employment relationship so that presented a difficulty, although Dave, through his efforts, is pursuing that. It is a real problem, Chair.
Steve Murphy: Chair, it is a problem in the industry generally because of false self-employment in the industry. It is a difficulty that we have.
Q897 Chair: We will have to make recommendations about this. In these circumstances, where you have false self-employment or sub-contractors, against whom should the case be taken?
Steve Murphy: I think, overall, the main contractor. The main contractor has control of the sites and they should insist that there is no blacklisting against individuals, even through a sub-contractor. I believe that the main contractor should be responsible for that site.
Q898 Chair: So would the individual involved be able to take action against the main contractor on the grounds that they had direct responsibility for everything that happened on their site? They, presumably, would argue that they could not possibly police every sub-contractor.
Steve Murphy: They should be able to police every sub-contractor, Chair, to be quite honest with you. It is their site. How do they police health and safety on their site?
Q899 Chair: Some of these questions are rhetorical. I just want to get the answer from you.
Jim Kennedy: They have to police health and safety on their site. They have to insist-
Chair: We have just been told there is a vote, so we will have to go and vote. Can you just talk amongst yourselves until we come back because otherwise we will be late? We will be as quick as we can.
Sitting suspended for a Division in the House.
Q900 Chair: Jim, you were in the middle of answering a question when I stopped you.
Jim Kennedy: Steve is going to go into detail about the answer to your question.
Steve Murphy: Your question was, if I remember, Chair, about who would be responsible to an employment tribunal. Was that your question? Did I get that right?
Jim Kennedy: It was: who would the blacklisted worker have recourse to take action against?
Chair: My staff tell me that that is the case.
Steve Murphy: Referring to what we said earlier, if we are going to change the law, it should be a criminal offence for a person to compile, store, maintain and distribute or use information derived from a prohibited blacklist. I refer you back to what we said earlier. So it is anybody who compiles that list.
Q901 Chair: In these circumstances the main contractor would be liable if it is they who have contacted the blacklist and passed it on.
Jim Kennedy: Yes, if they were the ones that had. Of course a major contractor has responsibility for upholding the legislation on their sites, whether it health and safety or whatever it is. They have an over-arching responsibility, but, of course, they may be the blacklister or they may not be the blacklister. Steve’s comprehensive list covers the points that you were talking about. Of course, they are the same points that Professor Keith Ewing, Dave Smith and others have made.
Steve Murphy: Chair, if we go back a little way, if you have got a sub-contractor coming on site, it may not necessarily be known by the main contractor, but while they are on site the principal contractor has a responsibility for that site and for the people working on that site.
Q902 Chair: I want to come back to a couple of points about the support that you have given to members. You mentioned to us about tribunals being out of time and so on. You have lost some tribunals because of not going for the right person, in a sense, because it was not the main contractor. Are there other tribunals that you have lost for reasons that you think have been unreasonable or unfair and that the legislation under which you were caught should be changed?
Jim Kennedy: The majority of the ones that we have lost, Chair, have been those that were out of time. Of course our processes in terms of these cases are under constant review.
Q903 Chair: I understand that. I asked just in case there were any other reasons that have not come up in the conversation up to now about why they were lost.
I want to be clear on one other point, which we touched on earlier. We heard about the GMB arrangements with their lawyers to compare lists. You are getting that as well, are you?
Steve Murphy: Yes.
Jim Kennedy: Yes.
Q904 Chair: Is it just yourselves and the GMB, or is there anybody else? I see that correspondence has gone to the ICO from the RMT now about the same thing. Is this going to be a universal agreement or do you not know that?
Jim Kennedy: No. David Smith, the ICO’s Deputy Commissioner, last week put a new statement on the ICO website that mentioned the GMB and ourselves. Other than that, we have no other information about that or anyone who has requested that information. I am assuming that, if they make representations like us and the GMB, then they would be afforded that same access.
Chair: That’s helpful.
Q905 Pamela Nash: One of the main reasons why we decided to undertake this inquiry was when it became clear to us that the health and safety figures in Scotland are even worse than the rest of the UK, although we do know that two people are killed on average every week throughout the UK and many more are injured. What evidence do you have that your members and other construction workers are put off from being health and safety reps and trade union reps within their workplace because of the fear of losing their jobs or being blacklisted?
Steve Murphy: Let me answer that. There is always a fear of people taking on trade union responsibilities and roles. Taking on the role of a shop steward, I was always worried that you would be blacklisted or kicked out. It is exactly the same with health and safety reps. I report to this Committee that, sadly, somebody was killed yesterday not too far away from here by falling off a scaffolding and someone else was critically injured as well. So two people a week are dying in construction throughout the UK. Sadly, it is difficult to get safety representatives because of the fears that they have.
Q906 Pamela Nash: Do you think that the fear is the same now as it has been in previous years, post-2009?
Steve Murphy: Absolutely, yes. It has always been there.
Jim Kennedy: It is probably more difficult now because of the recession and people are more reluctant to raise their head above the parapet in terms of making those representations.
Steve Murphy: That is absolutely right. People are clinging on to their jobs. Whereas you would have got someone to be a health and safety rep, now they won’t.
Q907 Chair: Just on this point, other than anecdotal, do you have any evidence of that? Have you done a survey of your members that says that? Again, if we are producing recommendations, we can’t just say, "Oh, we met a man who told us." If you had done a survey of your members and you had had some sort of proof coming back saying that a disproportionately large number now were unwilling to do that, that would stack up as strong evidence. Do you have anything like that at all?
Jim Kennedy: No.
Steve Murphy: I spoke to an individual yesterday in Stamford, which is a fairly small town, in Lincolnshire. He was a very good safety rep and a shop steward as well with a small company that went under. I spoke to him yesterday and he has been out of work for a number of months now. What he said to me, anecdotal or not, was this. He is finding it extremely difficult, because he is known as the union man and safety rep in Stamford, to get starts anywhere. This is a tradesman who is now working nights in a supermarket. So he is not working in construction.
Q908 Iain McKenzie: On the health and safety rep training, I believe that trade unions will provide health and safety training. Are you seeing a drop-off in your members coming forward for that training?
Steve Murphy: We would have to do the figures on that, to be fair. Obviously, it is not as great as it was because, as Jim said, we have had the recession and not as many people are coming forward. During the boom times, we were getting quite a number of safety reps and shop stewards. We would have to get the figures on that and, to be honest with you, we’d have to do a comparison, which we haven’t done.
Q909 Iain McKenzie: Could you provide that to us?
Steve Murphy: Yes.
Q910 Chair: One of the difficulties for us in pursuing this is that logic would seem to say that when there is a blacklist, at a time of recession, people are less willing to undertake these tasks, but the response we often get from a number of folk is, "Prove it. You are just asserting this. You have no evidence for this and, therefore, we don’t need to do anything about it." That is a difficulty for us if we want to put forward recommendations that would stick. If there is any way in which you can firm these sorts of things up, that would undoubtedly be helpful.
Steve Murphy: If we can get that information, Chair, we will, but we were not expecting certain questions today so it is difficult to bring that information with us.
Q911 Pamela Nash: Is that something you do as a union? Do you survey?
Jim Kennedy: We have a list of health and safety reps on our database that we can supply you with, and perhaps we can do a correlation with how many we had a few years ago and see if there has been a decline. That shouldn’t be too much of a problem.
Chair, I am sure you and other members of the Committee know of the adversarial nature of the industry in terms of health and safety where the employers and construction companies see health and safety regulations as a burden. When you consider that the average fine, where a worker has been killed, is around £6,000, if indeed it ever gets to that level, and where the costs of over-running on a job can be hundreds and hundreds of thousands of pounds, you can see the problems that trade union health and safety reps in the industry have in terms of how they are viewed by the employers. It is a tough job.
Steve Murphy: Could I add to that, Chair, which is an important point? There has been a move towards further false self-employment. We are seeing an increase in that and, indeed, a move towards payroll companies and agencies. So, again, there we have difficulties in getting safety reps in.
Chair: As I indicated at the very beginning, we came into the whole question of blacklisting having been engaged in a discussion about health and safety, when it became clear that this was a substantial issue that we felt we ought to address.
Q912 Pamela Nash: In consequence of that, do you think people have died or been injured in the UK as a direct consequence of blacklisting?
Steve Murphy: Of blacklisting or the lack of safety reps. If I can answer it in this way, it is statistically proven that, where you have a safety representative on site, that is a safer site. That is statistically proven. If there is a reduction, then, of course, you can say that that is because there aren’t as many safety reps.
Q913 Chair: I think we are just about drawing to a close. Finally, we always ask people whether or not there are any answers you had prepared to questions that we haven’t asked you and whether or not there are any issues that you want to raise that we haven’t already touched on.
Steve Murphy: I don’t think so, other than that, when we look at the industry and the state of the industry at the moment, notwithstanding that we have construction workers who are false self-employed, who are working through agencies, who are working through payroll companies, who have been denied employment rights, where we don’t have safety representatives, where we have no representatives on site whatsoever, and indeed where people have been blacklisted as well, you have to say that that is an indictment on an industry that creates 9% of GDP. As serious as blacklisting is, we have a dire industry in which people are treated terribly. That is what I wanted to add. Blacklisting is a serious concern on top of all the other concerns that we face generally as an industry.
Q914 Chair: Even today, when we were out for the vote, somebody was raising with us, "But you can’t prove that. There is no evidence that blacklisting still goes on. Yes, you might have this information that it was going on in the past, but why should we bother about it now because", and so on and so forth. In those circumstances, it would be helpful if you were able to give us anything that would enable us to stand this up, because the argument has to be that, if legislation is there, we have to demonstrate that that legislation is insufficient before we can justify asking for new legislation.
Jim Kennedy: You will remember, Chair, that the reason why the regulations were never enacted when they were first laid was because people didn’t believe that there was enough evidence that blacklisting existed. Well, they were wrong and we were right, and I think we are right now. Blacklisting goes on in this industry. It hasn’t disappeared. Those files haven’t evaporated into thin air. We believe that they are still being acted on, just like we said before, when it was exposed in early 2009. They are still there. The blacklisting scandal will get bigger and bigger and it will be on a scale similar to that of the Leveson inquiry now. It will probably encompass other industries and it may even include some Members of the Houses of Parliament. I believe that there are probably MPs on that blacklist somewhere.
Steve Murphy: It’s not new. If you look back, where people were blacklisted, it included MPs and trade unionists.
Q915 Chair: I can think of a number of my parliamentary colleagues who will be very disappointed if they are not on a blacklist. They would regard it as a badge of honour.
Jim Kennedy: Finally, Chair, we would ask you-there may be a conflict with yourself-and other Committee members, and their colleagues, in signing EDM609.
Chair: Okay. On that basis, I close the meeting.