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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE
To be published as HC 543- i
House of COMMONS
TAKEN BEFORE the
Scottish Affairs Committee
BLACKLISTING IN EMPLOYMENT
Tuesday 2 July 2013
Evidence heard in Public Questions 2632 - 2688
USE OF THE TRANSCRIPT
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Taken before the Scottish Affairs Committee
on Tuesday 2 July 2013
Mr Ian Davidson (Chair)
Mr Alan Reid
Examination of Witness
Witness: Gail Cartmail, Assistant General Secretary, Unite the Union, gave sworn evidence.
Q2632 Chair: Welcome to this meeting of the Scottish Affairs Select Committee. As you know, we are conducting a series of hearings into blacklisting in construction. It comes about following our inquiry into health and safety matters in Scotland and has gone a bit beyond that.
I am being reminded that I should swear you in before I even ask you a word. Could we ask you to affirm? (Gail Cartmail affirmed) Now that you are sworn to give us the truth, can you tell us your name?
Gail Cartmail: It is as published-Gail Cartmail.
Q2633 Chair: Can you tell us which organisation you represent, your position and why you, rather than somebody else from the union, are here?
Gail Cartmail: I represent Unite the Union. I am assistant general secretary. My responsibilities cover the financial services sector, public services, the energy sector and construction. I am leading for our union in relation to the issue of blacklisting.
Q2634 Chair: Can you tell us why you believe that BFK has been involved in blacklisting in its operations on the Crossrail project?
Gail Cartmail: May I answer that question by prefacing it? I can provide circumstantial evidence and all the evidence we have. What I am unable to do is prove it, but, if this Committee has the patience to allow me to take you through the circumstantial evidence and other evidence, I hope you will agree with me that, while it may be very difficult to prove blacklisting solely, without other parties present, only the chronically incurious would not draw the conclusion that we have drawn, which is that blacklisting is a contemporary issue.
Just as a brief anecdote, if I may, before starting, our union represented a man who was a rigger and is now 70 years of age, whose trade union victimisation case we took to an employment tribunal. We then appealed the employment tribunal to an employment appeal tribunal. It was only when our union got the encrypted disk from the Consulting Association and he asked whether his name was on it that he was able to prove to himself and to his family that he was right-that he was blacklisted. He never worked again, but at least he had something to show his family that the reason he was unable to find work was through no fault of his own. The reason I tell you that story is that, despite two jurisdictions looking at the facts, it is very difficult to prove blacklisting. All we can do is show the evidence and ask parties to be responsible for explaining the unexplainable. That is my starting point.
The Committee has heard evidence and has concluded that the Consulting Association probably would not have halted its processes had it not been detected. In your interim report, you also mentioned that blacklisting is not reference checking; in other words, vetting in the context of blacklisting is not merely reference checking.
We know that there were lists other than the Consulting Association list. Alan Wainwright, the whistleblower, published a list. In Ian Kerr’s evidence to the Committee, he stated that he thought it was still going on "in some form or another." We also heard from the late Ian Kerr in his evidence to the Committee that there were many meetings and discussions around the Crossrail project. So Crossrail was in the eye-line of the Consulting Association, and we know that the main contractors met and discussed it.
Some of the circumstantial evidence we have in relation to Crossrail generally, but then homing in on the BFK consortium-BAM, Ferrovial and Kier, which is one of the main contractor companies on the Crossrail project-is the number of main contacts with TCA. In its interim report, the Committee drew out the very important role of the main contacts. Forty-four per cent of those named on the list disclosed by Mrs Kerr to this Committee are working on Crossrail projects. Of the 44% on that list, I will come to the specific individuals who have an HR function working for BFK. I am sorry-it is 48% of the main contacts on that list.
First of all, we have the HR boss of the consortium, a Mr Pat Swift. On the establishment of that consortium as an entity, he was appointed as head of human resources for BFK on Crossrail. According to Ian Kerr’s evidence to this Committee, he was identified as the key company contact for BAM Nuttall, which sought information on a regular basis from the Consulting Association in order to blacklist. So we have a known blacklister who is at the head of this consortium of three contractor companies on a major project that was a subject for discussion at the Consulting Association to keep trade unions off the site.
We think it is utterly implausible to suggest that BFK did not know the background of somebody such as him when it appointed him to such a high-profile role. I met Pat Swift before the list of main contacts was disclosed, and I did not know he was a known blacklister. Had I known, things that he said to me would have made more sense, but I will come to that, if I may.
We know that Pat Swift was in charge of systematic vetting of workers and that systematic vetting of workers was required by BFK-not only of its own workers but also of those workers working for subcontracting companies. We have spoken extensively to a man called Mr Ron Turner, the former managing director of the EIS subcontractor, whose contract was prematurely terminated. In relation to the termination of that contract and the dismissal of not only the shop steward but all 27 other employees, he said to us, "Some time before the start of June 2012, whilst I was talking to" a Mr Horrillo, one of the managers of Frank Morris, our member and shop steward, working for BFK, "in his office, he said to me that there was a problem with one of the workers we had employed because he was known to be a trade unionist who had caused trouble. I asked who it was and Mr Horrillo pointed to" Frank Morris’s "name on a list of my workers."
Mr Turner asked, "Are you sure?" He said this "because I knew" Frank Morris "to be a mild mannered man. I was surprised that Mr Horrillo said this to me because by that stage the induction vetting process had already been undertaken". He continued, "A few days later I was in" BFK’s "main office at Westbourne Park. I was approached by Pat Swift"-the former main contact for BAM Nuttall-BFK’s "Head of Human Resources. He asked me why I had employed the Claimant because he had caused a lot of trouble on the Olympic site. I replied that if that was the case, it should have been picked up by" BFK "during the induction form process. Pat Swift offered no answer to that."
Later, when we spoke to Ron Barron, he said, "It was a slip-up. Frank Morris slipped through the net." Frank Morris is on the blacklist that was published by the whistleblower Alan Wainwright, but by that time EIS had employed Frank Morris and was not inclined to sack him for no reason, because he was a good electrician. It did not take the hint, so it kept him on the books. What was clear from Ron Barron’s conversation with us and from the evidence that we have seen was that the vetting process was installed by BFK and that Pat Swift was personally overseeing it. It is our belief that it was designed to keep trade union activists off the site, whether they worked for BFK or a subcontractor.
In relation to the Kier company, there was another known blacklister, who is the group HR manager, Kathy Almansoor. She also plays a role. She was one of the key contacts between the Kier company and the Consulting Association, as evidenced by Ian Kerr in his presentation to this Committee; so she is also there in an HR function. We also know that a former Kier employee, a Mr O’Sullivan, was actually the chair of the Consulting Association at the time he was employed by Kier. He is now running a labour agency called Danny Sullivan Ltd, which supplies workers to BFK for the Crossrail project.
I appreciate that this is all circumstantial, but we have known blacklisters vetting, tapping a subcontractor on the shoulder and asking, "Why did you employ this man? He is a known troublemaker." Our question is, what lists were they checking against? Where did that name appear for those questions to be asked? We think it is highly concerning to have 48% of the main contacts with TCA in HR roles on the Crossrail project and key people placed within BFK.
Let us look at Crossrail as an entity. Of course, Crossrail did not exist before the project; it was brought together, like the Olympic development agency. Bechtel is the bit that does the HR for Crossrail. The Crossrail management team employed Ron Barron until late 2012, at the time of the dismissal of our member, Frank Morris. He was deployed in the team as the industrial relations manager for the whole of the Crossrail project. Again, Ron Barron’s name appears in Ian Kerr’s written evidence to the Committee as the key company contact between the Consulting Association and the CB&I company.
The important point to note is that Ron Barron personally took CB&I into TCA. He would not appear as a witness at an employment tribunal in 2010 where the defendant, Mr Willis, was making a complaint of blacklisting, which the ET upheld. The relevance of this employment tribunal and the financial award the employment tribunal made in favour of Mr Willis, a member of our union, became obvious to me only after I had attempted conciliation at ACAS in relation to the EIS subcontract and the dismissal of 28 workers. The link between Mr Swift and that employment tribunal financial supplement became apparent to me only after the list of main contacts was published.
When I was at ACAS conciliating-or attempting to conciliate-with the party representing BFK in three meetings, the role Pat Swift had played in TCA was unknown to me. Of course, as you know, conciliation meetings held at ACAS are subject to confidentiality, so I am unable to explain exactly the link, but there is a link-and it is a very sinister, cynical link-between Frank Morris’s dismissal and remedies that were suggested, and the blacklisting case that Mr Willis won. Again, that is circumstantial evidence, but you would have to be seriously incurious not to want to know a bit more about some of that.
So Unite was really concerned about the evidence. The EIS subcontract employed Frank Morris in February 2012. He was employed to work on a tunnelling project at Tower Hill. Subsequently he moved to another tunnelling project managed by EIS at Westbourne Park. He then returned to Tower Hill and was brought back to Westbourne Park. Both of the projects were under the scope of BFK’s C300 Crossrail contract, which has a value of £250 million to the BFK entity.
I have already alluded to the selection procedure deployed by BFK. The owner of EIS, as a labour supplier, was very canny and experienced. I can give more evidence on his experience in the industry. He would employ only properly qualified and competent operatives. He went through all of the CVs and employed them personally, but he accepted that BFK would vet those applications after induction. I have asked against what list it would vet those and identify any single individual, particularly as at that time Frank Morris had no trade union role-he was simply an electrician, working for EIS.
It was only when Frank Morris went back to the Westbourne Park site that this indication of a problem was raised. It was raised in May 2012 when, as I explained, a BFK manager spoke to Ron Turner and informed him that there was a problem. It was identified that the problem was Frank Morris. I mentioned earlier that there was a second conversation including Mr Swift, in which Mr Swift pointed to Frank Morris’s name. The conclusion we have drawn is that it is highly likely that BFK checked the list for a second time against other blacklists and discovered Frank Morris’s trade union activities. I have already mentioned that Mr Morris’s name was on another blacklist that is in the public domain.
We think that it was an error and an oversight. We believe that, when Frank Morris was finally identified, BFK put its machinery into overdrive and began a campaign of victimisation and bullying against him. We believe this because, on returning to work on the Westbourne Park contract in June, Frank Morris reported to his union that he had received a distinctly frosty reception from a number of people, including a general foreman who, out of the blue, refused to speak to him. Steve Miller, another BFK manager, tried to engage Frank Morris in conversations on the subject of trade unions.
This was the first time Frank realised that there was an issue in the mind of BFK and that it had discovered that he was a trade union activist. He was surprised, as he had never talked about trade unions and had never mentioned his trade union membership to any BFK personality. He decided immediately to protect his position by formalising a trade union role. He sought the support of his work colleagues to become a shop steward because, as all of us in this room know, shop stewards are protected from victimisation-at least, that is what we hope is the case.
Within 24 hours, a Unite official went on to site. There was a vacancy, as there was no shop steward in position. It was perfectly okay with EIS, which had no problem with it, and he was elected shop steward. The moment Frank formalised his role, he immediately suffered detriment. I have spoken to him at length about this. He was instantly given limited access to the site. He was isolated from other colleagues when he raised a health and safety issue with regard to the tunnel boring machine. In addition, a fellow health and safety trade union representative was removed from the job when Mr Morris raised an issue regarding his attendance at health and safety committee.
Following this, Frank Morris was moved from the site to a warehouse, where he was asked to fix the electrics. He was then relocated for a second time to work in a cabin on the site offices. He was put in isolation. I understand from Frank that he was banned even from entering the canteen. When he complained about this treatment, Steve White, a BFK manager, immediately requested the presence of two other BFK managers before accusing Frank Morris in front of other witnesses of attempting to "get the union in here." So this is a man who had not raised the trade union and his trade union membership but whose actual employer was tapped on the shoulder by two BFK managers, and it was hinted very heavily that he should be aware that this was a trade union activist-in other words, get rid of him. The moment he took up a trade union role, to protect him from discrimination, he suffered that detriment.
Just to give the Committee other insights into what was happening on the Westbourne site, there was a foreman called Mr Garry Gargett of EIS, who was subsequently removed from the site by Mr Horrillo in August 2012. This gentleman, who was a foreman-I do not believe he was a member of our union-took photographs of scaffolding materials that had been thrown on to a live 11,000 V cable. I have the photographs and am happy to show the Committee the pictures he took. As he was taking those photographs to his supervisor, a Mr Miller, he was intercepted by Mr Horrillo, who made a wild allegation against Mr Gargett-a foreman on the site-that he was going to publish the pictures on the internet and should have obtained a permit before taking the photographs. He was suspended immediately from the job.
I find it quite incredible-our union finds it quite incredible-that somebody who is attempting to raise a bona fide health and safety hazard is immediately suspended from the job. Later, after the dismissal of EIS operatives, on a Holborn part of the project under BFK management, a man was airlifted to hospital with about 60% burns, having cut through a live cable of a similar voltage. These cables are highly dangerous, and any hazard should be properly recorded and immediately reported.
BFK terminated the EIS contract. We believe it did so to force Frank Morris out and that the owner of that subcontracting company and all 27 other operatives were collateral damage. The notice of termination of the BFK contract was issued only 77 days after BFK had entered into a contract taking it through to 30 September 2013-in other words, an 18-month extension. The BFK argument, put to me personally, is that the work had finished, but it is clearly not substantiated by the fact that an extension of contract for 18 months had been issued only very recently and that the work was continuing, and we have evidence to show that the work was continuing to be done by employees of other electrical contractors.
What we think is really clear is that the presence of Frank Morris on the contract was not welcomed, but it was intolerable once he took up a trade union position and BFK would deploy any tactic necessary to remove him from the site, even if that meant that 27 other people were removed as well. The notice to extend the EIS contract with BFK was issued seven days before Frank Morris was elected as a shop steward, and the notice to terminate the EIS contract was issued 36 days after Frank Morris had submitted a formal grievance.
Mr Ron Turner firmly believed that the notice of termination was linked to Frank Morris having a trade union role. He said to us that, in response to his questioning why his subcontract had been terminated, he was told by BFK that "things had changed." He told us that, during the period between the extension of the contract in June 2012 and the cancellation of the contract in September 2012, the things that had changed were that Mr Morris had been elected shop steward and both he and Mr Gargett had raised health and safety concerns. He told us that the work continued, and was continued by other subcontractors after the termination of the EIS contract.
We believe BFK’s actions had nothing to do with the quality of or satisfaction with the work carried out by EIS, because it was rewarded with an extended contract, but were to make an example of EIS and to warn other contractors that employing trade union activists would not be tolerated. We have no doubt at all in our minds that that hard-line approach was designed to send a clear message and a clear warning to other workers that trade union organising would not be allowed and that any workers joining trade unions would face repercussions of losing their jobs.
As I have mentioned, we have in our documentation the photographic evidence of the hazards. We have a letter to our regional official from the EIS owner, who is now in liquidation, following the loss of that contract. He concludes by saying, "I feel the above personnel"-he lists them-"have been treated extremely unfairly" and it "is only too keen to banish whistle blower from site without due process, whilst I am the paymaster for these individuals, I have no control over BFK’s Tunnel Team, who have little regard for the consequences of their actions with regards to sending people off site without any formal hearings or appeals. I firmly believe that the decision to cancel my contract was driven by BFK wanting to remove Mr Morris from the project."
For the sake of brevity, I have read only the concluding paragraph. I have a copy of the extended contract, which is evidence and shows that the contract was extended, so there was no problem with the work of EIS. All we have asked is that people look at the evidence, at the high numbers of Consulting Association personnel engaged in HR functions, particularly by BFK, and at Mr Pat Swift, in particular, and his vetting role. We have asked what list that was vetting against, how it could be the case that an individual was brought forward specifically and in the manner that I have just described, and how it can be the case that a whole subcontractor work force is dismissed when the contract for the electrical and cabling work that they were engaged to do was extended and the work continued, and there is no real evidence to prove that the owner of that company is wrong. Nobody will answer those questions. Nobody will join up the dots and step back and look at the bigger picture.
It is on that basis that we believe that Frank Morris was the victim of a blacklist. He was certainly discriminated against as a trade unionist, but we believe he was a victim of a blacklist. We believe that, as Ian Kerr stated in his evidence to this Committee, blacklisting is a contemporary issue. There will be blacklists. TCA was one blacklist. We believe the industry is unrepentant-it regrets only that it was found out. As I have said, a conciliation meeting held under ACAS auspices strengthened my view that blacklisting, specifically by BFK, was an issue against our member, Frank Morris, on the Crossrail project.
Q2635 Chair: That is a pretty comprehensive exposition of the position as you understand it. We agreed earlier today to publish some of the material that you have given us. On reflection, we would probably agree that we would want to publish all of the material that you have given us, plus any additional supporting material that you wish to provide; I think there were some references to records of tribunals and so on in your evidence. It is probably best that we just agree to publish all of that as well. You could make arrangements with the Clerk to pass on additional material or we can find it ourselves.
There are a number of individual points relating to this, but there are also generalised points. You obviously believe that BFK has been involved in blacklisting; you have the example of Frank Morris. From the dates, as I understand it, this occurred after the Consulting Association blacklist had been seized. I am sorry-the microphones and the record keepers do not pick up nodding of heads. You therefore have to say something.
Gail Cartmail: I had not realised that you had finished, Chairman. Yes, these events were well after the 2009 TCA list was published. Mr Morris’s name was not on that list. Mr Morris’s name was on the list published by the whistleblower Alan Wainwright. It is our belief that there are other lists.
Q2636 Chair: I am sorry-I had not appreciated that. So in fact this gentleman’s name was not on the list that was produced by the Consulting Association. While I have seen most of them, I cannot recall all of them. So his name was not on the Consulting Association list.
Gail Cartmail: No. In my bundle, I have the list published by Mr Wainwright. It includes Mr Morris. So Mr Morris’s name was on one published list we know about. For all we know-it is my firm belief personally and my union’s belief-clearly Mr Morris’s name must be on other lists, because our contention is, what is the vetting checking against? He is a competent electrician, there is no complaint about his work, he has all the relevant credentials, he was perfectly efficient and his timekeeping was impeccable, so what was the problem? What was the vetting for?
We know that in the employment tribunal case of Mr Phil Willis, to which I referred, the tribunal found that this vetting procedure is not innocent reference checking. The reference checking is by the employer-the subcontractor. In the case of Mr Willis, it is agreed by the employment tribunal in its findings that this vetting is a process of blacklisting. The Committee has also heard evidence that shows that vetting is sinister in respect of certain contractor companies in the construction industry. It is not innocent reference checking.
Q2637 Lindsay Roy: Is it not the case that Frank Morris has already been reference-checked by EIS?
Gail Cartmail: Indeed that is the case.
Q2638 Lindsay Roy: This was therefore subsequent.
Gail Cartmail: Yes. One begins to see the vulnerability of subcontractors in this whole system. A subcontractor is reliant on their income as a labour supplier. By the way, this subcontractor-the owner of EIS-was the site manager. He resigned that role because he was disgusted by BFK’s attitude to his employees, but he remained their employer. As a labour supplier, he has to know that they have the relevant qualifications, the relevant safety training and the relevant employment record and references, and that they are fit and healthy to do the job. He did all of that. I have in my bundle his CV, which shows all of his qualifications to undertake that process as a labour supplier.
However, he accepted that BFK wanted to do its own vetting. While it is unpalatable, a subcontractor does not have the power to say, "What are you doing that for?" They comply with it. His evidence to us is that BFK slipped up-it did not spot the name immediately. It was only when Frank Morris went back to the Westbourne Park site that they checked the induction forms again.
Q2639 Lindsay Roy: Have you any evidence that EIS’s owner and employees are now on a blacklist, too?
Gail Cartmail: I am sorry, but I did not hear the question.
Q2640 Lindsay Roy: Have you any evidence that the EIS employer and the people who were employed by him-the 27 who were dismissed-are on a blacklist, too?
Gail Cartmail: No. The employer has stated-I quoted a bit from the letter that he wrote to our official, and I am happy to quote more-quite openly that he obviously failed to take the hint. There was obvious expectation that he would get rid of Frank Morris. He did not; he is a good electrician. He firmly believes that he was driven off the project and that his contract, although extended, was terminated only a little while later, not because there was not the work to do, because that was being done by other contractors, but because he was perceived to be trade union-friendly.
Q2641 Lindsay Roy: So, to coin a pun, it was a fabrication that there was no work.
Gail Cartmail: Absolutely.
Q2642 Lindsay Roy: And they had therefore been victimised.
Gail Cartmail: Absolutely. In his letter to us, he goes on at some length about other contractor companies. He says in his letter to us, "I asked Mr Tagg why this was happening"-why the labour-only contract was being terminated-"to which he replied that the installation phase of the project was now completed and that the other Labour Supply Agencies on site McGinley, IPS and GTE-were better placed to facilitate the ‘Tunnelling Activities’. I challenged this stating that EIS-Ltd had a well-established track record of constructing Tunnels in the UK, whereas McGinley is primarily a Network Rail Labour Supplier, with only one Tunnel project to their credit, which was T5C Baggage tunnel, only 1.8km long, with EIS-Ltd supplying the Mechanical Fitters and Electricians. I personally was the Plant Manager, this was a Ferrovial Project. IPS are based in Rotterdam and have little experience in the UK, GTE are based in Germany and again have little UK Tunnel form." Then he gives the history of his tunnel career.
It is important to note, by the way, that he mentions Ferrovial in this. Ferrovial is a part of the BFK. BAM is a known blacklister. Kier is a known blacklister. Ferrovial is a Spanish-based company. When it took over Amey, which was a member of TCA, before the ICO bust in 2009, it extrapolated Amey from TCA-it wanted nothing to do with it-but now it finds itself embroiled with BAM and Kier. So Ferrovial has no track record of blacklisting, except that now it is embroiled in this tripartite consortium.
Q2643 Lindsay Roy: Can we just check for the record that there were no issues at any time about the quality of work undertaken by EIS?
Gail Cartmail: No. In fact, it was rewarded, as I have mentioned, in June by the extension of the contract to 2013.
Q2644 Lindsay Roy: So quite the contrary-it was happy with the work.
Gail Cartmail: Absolutely.
Q2645 Chair: There is a whole chunk of detail there, which obviously we will examine later. Can I come back to this question of other evidence about companies doing this sort of vetting and so on, and having similar results? Is this the only clear-cut example that you have of there being blacklisting of somebody who has been involved previously in trade union activity?
Gail Cartmail: There is another example we could bring forward. It is an example that was explained on the recent "Panorama" programme. This example that I am bringing to the Committee today is one where we have most evidence.
Q2646 Chair: So there is not a whole string of them. Obviously, by its very nature it is secretive, clandestine and so on; we appreciate the difficulties of evidence. Can I ask just for clarification whether you believe that Frank Morris’s name was run against a list held by BFK or whether you believe the list was held by anybody else? Have you any evidence either way on that?
Gail Cartmail: I cannot speculate. We know that there must be a list of names against which the vetting process goes on. Can I just explain why it is quite difficult to bring forward lots of examples? It is very difficult because very often people are working for subcontractor companies, which, as we have just discussed, are very vulnerable themselves. Their meal ticket is a major contractor. If a major contractor asks a subcontractor to jump, normally the response is "How high?" If the workers working for a subcontractor suffer a detriment, they can take an action only against the subcontractor, not the contractor.
So we have a conundrum here. If people come forward with evidence that they have mysteriously been engaged, as was explored in the "Panorama" programme, and then disengaged, while other electricians have been engaged-in other words, the same number of electricians have been required and suddenly their name drops out, having passed all the normal tests-that is quite a brave thing to do. I was quite surprised that our member went forward publicly and gave that information to the "Panorama" programme, because up until that point he was obviously very unwilling to do so, as that puts his name and face out into the public domain. That is the problem here. I am convinced that vetting is a habit-a means by which major contractor companies scrutinise the names of personnel provided to them by labour agencies or labour-only contracts.
Q2647 Jim McGovern: Previously, when we heard evidence from the late Ian Kerr, it was obvious from written evidence whether a person was on a blacklist. We actually heard evidence from two electricians from Dundee, who provided us with documents that showed they were on a blacklist. If vetting is still going on-I agree with you and believe that it is-is it now done by word of mouth? Is it on paper anywhere?
Gail Cartmail: As this Committee knows, there were two means by which Mr Kerr collected evidence. He scoured newspapers, and he took information from main contacts. The only reason we know about that, of course, is not because they blacklisted but because they infringed the Data Protection Act. The only reason we know about TCA’s list is because the ICO raised the premises. We know of another list, which is in this bundle, which was published in 2006 by a whistleblower, Mr Alan Wainwright. These are two lists we know about, one because of a whistleblower and one because of an infringement of the Data Protection Act. We are all on the edge of our seats wondering how next another list will be exposed.
The burden of proof on a trade union, for example, or any party-any individual-to prove blacklisting is very heavy, because it is underground and secretive and nobody admits to it. Nobody admits to blacklisting until 2009, when the list is published, and people are still in denial. You have heard evidence from people in the industry-contractor companies that were members of the Consulting Association-who have told this Committee that their vetting and these lists were innocent. I do not believe that vetting in the context of contractors vetting labour provided by a competent labour agency is innocent. I think all the evidence points in the opposite direction. This is an absolutely typical, classic example, except that they made a mistake-they slipped up. A heavy price was paid by the owner of EIS and 27 other people for that slip-up.
Q2648 Jim McGovern: Recently I managed to raise it at Prime Minister’s questions. As recently as last week, I raised it at Scottish questions. If I am to cut the answers that I have had down to a couple of words, they seem to be, "Prove it."
Gail Cartmail: Exactly. The only thing that proved the whole TCA outfit, which was reliant on membership and how much money was being passed over the table-£2, £1.50 a check, for thousands and thousands of people, as this Committee has heard-was a raid by the Information Commissioner’s Office.
Q2649 Jim McGovern: But the answers that I am getting are, "Yes, that was years ago. If it is happening now, prove it."
Gail Cartmail: With respect to the Chairman, all we ask is that people look at the evidence we are providing in respect of this case: the involvement of Mr Swift; the role he played in vetting; the fact that Mr Morris’s name was on a list; the fact that the contract was renewed and then very speedily terminated; and the fact that a foreman who raised a health and safety issue was immediately suspended and removed from site, never to return to it.
Look at all that evidence, and I ask any reasonable person who looks at all of that evidence to draw a conclusion that none of it is suspicious. I do not think any reasonable person could draw a conclusion other than that there is huge suspicion here. What I find quite interesting is that Crossrail and BFK are congenitally incurious to go through this evidence with us and to look at the facts, because, if you join up the dots, it creates a pretty convincing picture that blacklisting is a contemporary issue.
Q2650 Jim McGovern: I agree with you entirely. You may win one case at a tribunal, but that does not prove it is widespread.
Gail Cartmail: Maybe, if I may say so, the onus should be on the company to prove that it is not blacklisting. That would require a change in the law. We are saying that, currently, this is not a legal issue but a moral issue-this is morally reprehensible. If there were some sort of legal requirement for a contractor company to explain these actions, under oath as I am, looking at all the evidence forensically, with somebody qualified to go through that evidence within a judicial process, only then could we be satisfied that there is not blacklisting.
At the moment, the burden of proof is on the individual or the trade union. How do you prove secretive spying activity, unless there is a whistleblower or a slip-up? We think that fatal to BFK is that it slipped up-he got on the job. It then tried to cover its tracks and speeded up its reaction when he took on a trade union role. That is our belief.
Q2651 Lindsay Roy: The late Ian Kerr told us that there was a lot of conversation in the Consulting Association about Crossrail being a problematic project. Why do you think that was the case?
Gail Cartmail: Mr Kerr told this Committee-I have his evidence in this bundle-that there were a lot of conversations and discussions about the Crossrail project between members of the Consulting Association, which, of course, included BAM and Kier, and they referenced the Jubilee project.
Q2652 Lindsay Roy: Can you explain why they referenced the Jubilee project?
Gail Cartmail: Because it was a project that had industrial relations difficulties and they therefore wanted to ensure that the project-do you know what? I don’t know. I can only hypothesise.
Q2653 Lindsay Roy: When you say industrial relations difficulties, do you mean there were health and safety issues?
Gail Cartmail: There were a lot of issues on the Jubilee line. It was not my area of responsibility, but the Consulting Association saw trade union presence on the Jubilee line project as a problem.
Q2654 Lindsay Roy: Do you know why that was the case?
Gail Cartmail: Well, trade unions raise issues for their members. One of the grievances that Frank Morris raised was the issue of a bonus that was owed to the men. He raised it properly, using procedure. BFK managers did not take kindly to that. These are issues that people raise. A foreman attempting to report a serious infringement of health and safety-I am happy to show you the photographs I have-is suspended and does not return to the project. This is not an industry that wants to deal with things openly and constructively, if you will pardon the pun.
Q2655 Lindsay Roy: Can you confirm that health and safety featured prominently?
Gail Cartmail: On every project, the Jubilee line included, health and safety issues are major concerns that trade union representatives raise. One of the problems people have in the construction industry is that, if they have held the role of a trade union representative, they will have had health and safety training. It is impossible to ignore that training. It is impossible, even if you do not hold a trade union role, not to point to hazards. On the BFK Westbourne Park project, people were pointing to hazards, as they would have done on the Jubilee line project and elsewhere.
For the Committee’s information, I mentioned a BFK-managed project where, after EIS was dismissed, an operative was airlifted with serious burns, but in September a hopper on the Westbourne Park project collapsed, closing two lines out of Paddington station. The Committee may know that a hopper is a piece of machinery that takes the earth that is tunnelled out on a conveyer belt and, in this instance, tips it on to an open train; it then goes to a nice ecology project. This is a project where people were reporting health and safety hazards such as I have described to you. Our view is that BFK’s track record on safety has been very poor indeed. In fact, it was admitted to me by BFK representatives to be poor.
Q2656 Lindsay Roy: And there were no indications that these were vexatious claims.
Gail Cartmail: No. The trouble is that I am now delving into conversations I had in the context of ACAS conciliation. As you know, that is covered by confidentiality.
Chair: Maybe we can clarify that. I am aware from discussions that have taken place before of this question of confidentiality of ACAS. My understanding is that the parties to ACAS discussions are bound to confidentiality and not to discuss things but that the rights of this Committee override that. I will seek clarification from the Clerk as to the legal advice that we have had, but my understanding is that you are under an obligation to tell us the whole truth, otherwise you are in contempt of Parliament, which is obviously a serious matter. I invite the Clerk to clarify the position as he understands it.
The Clerk: I can quote from "Erskine May", which says, "A witness is bound to answer all questions which the committee sees fit to put to him"-or her, in this case.
Chair: Can I make this point absolutely clear? Having taken legal advice based on that from the Speaker’s counsel, I believe-is that correct?
The Clerk: It is a matter of procedure rather than-
Q2657 Chair: My understanding is that you do not have an option, as it were. Our inquiry trumps any commitments you gave about confidentiality in ACAS. We therefore want to have a full account of the discussions that took place in ACAS. I hope that has the merit of clarity. I appreciate that you may not necessarily be happy with it, but I hope that is absolutely clear. We do expect you to tell us what happened in ACAS discussions.
Gail Cartmail: That is clear, Chair. It does give rise to a serious industrial relations issue, but it is clear. I understand that you expect and want answers to your questions.
Q2658 Lindsay Roy: So can I clarify that there was no indication of vexatious claims?
Gail Cartmail: No. Bear in mind that the ACAS discussions took place very shortly after the EIS contract was terminated and that my key objective was not to raise a brouhaha but just to get people and EIS back to work. At that time, I did not know that opposite me was a main contact for the Consulting Association, Mr Pat Swift. I was raising then concerns that we had about blacklisting and was sure that he would want to have nothing to do with it, and all the rest of it. It seems ridiculous now, because I was in complete innocence of his role. A number of things were said. Frank Morris raised an issue about the manning on the boring machine and the safety cabin. He genuinely believed that the cabin was overmanned-that there were more men working on the boring equipment than would be provided for in the refuge. In other words, the numbers exceeded the numbers.
Chair: I am sorry, but I do not understand that. When you say "overmanned", it conjures up a picture that there were just too many people doing the job, in the sense that it was inefficient.
Gail Cartmail: No.
Q2659 Chair: So what was the problem?
Gail Cartmail: Obviously tunnelling is a really serious piece of work-you have to have very rigid safety standards. The boring machine has a place of safety. If something goes wrong, the operatives go to this place of safety-it is integral to the boring machine. It is shelter from collapse and other hazards, but only so many people can fit into that area. It was Frank Morris’s belief that the numbers working the boring machine exceeded the numbers that could be safely accommodated in that cabin.
In the ACAS talks, it was admitted that there was nothing wrong with Frank Morris’s work and with EIS’s work. Initially, there was no explanation of why Mr Morris was isolated. They then brought forward that he had raised this hazard. They said he was wrong-that he was mistaken-and that the numbers that can be accommodated in the shelter were commensurate with the numbers in the tunnel at the time. I asked whether that was the reason for his punishment-that he had misunderstood health and safety. Let us suppose that what they were telling me was correct. Previously they had said that safety hazards should be reported without fear.
So I asked whether the reason for him being put in a cabin to do electrical cabling was that he had raised a health and safety hazard and, if so, why he was punished for raising health and safety. I took their word for it that he was wrong to raise it. There is conflicting evidence on that, by the way; I believe that the EIS contractor agrees with Frank Morris’s analysis of that particular hazard. It does not add up, if you see what I mean, that he should be isolated and put in a cabin to do electrical cabling for raising a safety hazard if you are to report hazards without fear.
At that point in those ACAS discussions, I began to try to figure out in my own mind what the real issue was here. I could not understand why a foreman-not a trade union representative but a foreman who had taken pictures, which I have here, of what he regarded as a serious hazard of scaffolding discarded across a 110 V cable-would be suspended. The reason that I was given was that Crossrail had a protocol that banned all photographs. Again, I find it implausible. You might say, "By the way, you just need to know that taking photographs is not approved of on this project, but thank you for bringing forward this hazard." Quite the opposite-the BFK person suspended the EIS foreman from the job. That is a matter of record-it is a matter of fact.
Q2660 Jim McGovern: I have given this example in previous evidence, but back in the early ’70s I was an apprentice in the construction industry. McAlpine was building a major project. Actually, it was the world headquarters of General Accident in Perth.
We were told that, when we went on the site, we could not say we were from Dundee because McAlpine would not let people from Dundee on the site. So McAlpine not only blacklisted individuals but it blacklisted a whole city at that time. We were told that if we went into any canteens on the site, "Don’t speak in a Dundee accent." Dundee people have a strange accent, and a "fried egg roll" becomes a "fred egg roll." How ridiculous is that? But we were subcontractors. We were not employed by McAlpine. The question to ask is, is it normal for a main contractor to vet the subcontractors and say, "They are not getting on the site because we don’t like them individually or whole cities"?
Gail Cartmail: My answer to that question is that we believe it is becoming increasingly common. I gave the example that was exposed in the "Panorama" programme on one of our members, who, to his credit, went public with that. We have this example. This is not a pen pusher in a back room vetting. In this instance, it was undertaken by the person who had overall responsibility for HR at BFK. If he is doing it on Crossrail projects, our belief is that others would.
I alluded earlier to the Phil Willis case. Do you remember that I mentioned an employment tribunal case?
Jim McGovern: Yes.
Gail Cartmail: The tribunal found in favour of Mr Willis, our member. I mentioned the role of Ron Barron, the industrial relations manager employed by Bechtel until 2012, when he became toxic because of his then known role, through this Committee, in the Consulting Association. I mentioned that he refused to give evidence in the Philip Willis case. Pat Smith had nothing to do with that employment tribunal case. It is just one more employment tribunal that took place and so on, but the economic solution suggested by Mr Swift to me in ACAS was exactly the amount the tribunal awarded Mr Willis. Again, I did not know at the time that I was talking to a known blacklister. I did not know at that time the amount that the tribunal had awarded Mr Willis. I did not know of the role of Ron Barron in relation to CB&I and being a former chairman of TCA. I knew nothing of that. I was conciliating in good faith. You may think I am naive, but how could I have known of that? It is only subsequently.
So Pat Swift had nothing to do with the Phil Willis case. He had nothing to do with the settlement, but the economic solution that he put forward to get rid of the Frank Morris problem through conciliation was exactly the amount that the tribunal awarded. I felt sick when I found that out, because another aspect of the conciliation was that, at one point, I said to Mr Swift, "You appear to know more about Frank Morris than I do, and he’s our member." There was, clearly, behind-the-scenes activity.
References were made in a similar manner and vein that were made by the late Mr Ian Kerr to this Committee about surveillance. Knowing what I know now, given that my prime objective was to get Mr Morris and his colleagues back into work, it was mission impossible, wasn’t it? That was never going to happen. That was never going to be possible in those conciliation meetings because the whole operation was to get rid of Frank Morris. They didn’t care if that meant ruining those companies and dismissing 27 other people. They didn’t care. That is the conclusion I have drawn. It is a long-winded answer to your question. You can see why we are saying that some of this is circumstantial, but it links.
The Mr Willis tribunal case that I mentioned was after the ICO raids. This was after the TCA had folded up. It was after it had ended. There must still be conversations, don’t you think, about employment tribunal outcomes? Otherwise, how would Mr Swift come upon that amount if it were not for the fact that he was in close contact with Mr Barron about personnel issues? What other conclusion can be drawn? The TCA gets busted, the list is in the public domain, but still Mr Barron is employed by Bechtel and Mr Swift is employed by BFK. As an economic solution to this problem, they come forward with an amount awarded in 2010 by an employment tribunal, after TCA has closed down.
Q2661 Chair: Can I ask you about the amounts? Was there a recognisable formula that could have been applied? You add this to this and take this for that, so you have both people coming at it, using the same formula, and they arrive, therefore, at the same figure.
Gail Cartmail: The probability of that is extremely unlikely. Forgive me, Chairman, for turning to the evidence of the tribunal decision. By the way, remember that the tribunal did not take kindly to the failure of Mr Barron to give evidence to it. So the statement given on his behalf by another party to the tribunal was not counted-
Q2662 Chair: Maybe this is something I should know. Do tribunals not have the power, as we do, to compel attendance?
Gail Cartmail: I can’t answer why he was not compelled to attend. I can only read to you what the tribunal said. I am just looking for the relevant bit. Just to go to the tribunal’s findings, this was a tribunal held at Ashford on November 2010, so it was well after the raid by the ICO. The case is Mr P Willis and the respondent is CB&I. A party other than Mr Barron appeared for the company. "The Tribunal did not accept the Respondent’s suggestion that the list was used simply to assist with reference checks and to ensure all previous employers had been declared.
"Mr Barron used the blacklist for the purpose intended, namely to identify militant trade union activists and to deny them employment. He consulted it regularly."
The tribunal says elsewhere in its written reserved decision: "Mr Barron’s non-attendance as a witness at the Tribunal hearing was surprising in view of his crucial position in the context of this case. His absence was not explained to any satisfactory extent. The Respondent submitted simply that he was unavailable. This was despite his key position as the recruitment manager with the Respondent, his involvement with TCA and his part in receiving and dealing with the Claimant’s application form. The Tribunal was informed that he had only very recently terminated his employment with the Respondent, and he lives here in Ashford. The Respondent sought to put in evidence from Mr Barron through Mr Braddel who said he had spoken to him recently. This was seeking to use Mr Braddel as a means of introducing Mr Barron’s testimony, but not under oath and without giving the Claimant an opportunity to cross-examine him. The Tribunal concluded that it could not rely on the testimony of Mr Barron given through Mr Braddel and it was discounted accordingly."
As I have just mentioned, Mr Barron ceased working for Crossrail at the pivotal point when his role in TCA was brought to Crossrail’s attention, but this was after he had set up the Crossrail project from an HR perspective, alongside the likes of Mr Swift. Just to remind this Committee, 48% of TCA’s main contacts work in HR roles on the Crossrail project. I repeat-48%.
Regarding Mr Swift, who did not work for this company, who was not a witness in this case and, in fact, had nothing to do with this case whatsoever, you asked if it could be coincidence that the amount put forward in the confidential ACAS talks could be the same as Mr Willis’s settlement. No, because Mr Willis’s settlement is specific to his income, his earnings loss, his rate of pay and other factors that are personal to him as a worker at that time. It is inconceivable that those facts would be identical in the case of Mr Morris. The calculation of remedy in respect of Mr Willis goes to over a page, "The net rate of pay was agreed by the parties at £550 per week." It goes on in further detail. So, no. I hope I have made my point. It is inconceivable that any party could just pluck out of the air an amount that, by pure coincidence, was the same as this employment tribunal settlement. It is my firm belief that Mr Pat Swift and Mr Barron were in cahoots in respect of this issue.
Chair: Jim, does that cover it?
Q2663 Jim McGovern: Thanks very much for that comprehensive answer. Given, as I said earlier, that the Prime Minister and, as recently as last week, the Under-Secretary of State for Scotland have said that this is historical and it no longer exists, why do companies like BFK, knowing that it is now illegal, still take this course of action?
Gail Cartmail: My belief is that they want to ensure they have a profit margin that is acceptable to them. The grievance that Mr Morris raised was in respect of the payment of the bonus that another electrical subcontracting company-McGinley-was paid. It was acknowledged that it should be paid, but it was not being paid and it caused conflict. Of course, the role of a trade union representative is to get the rate for the job. BFK did not want to pay, in this instance, the rate for the job. This is very inconvenient. It is time-consuming. People were raising inconvenient health and safety issues that contactor companies might, in some cases, want to gloss over.
Q2664 Jim McGovern: Are you saying that they did put in a bid for a job and somewhere in the bid they have allowed for the fact that they might lose a tribunal or two along the way?
Gail Cartmail: I believe that the industry is that cynical, and the reason why I believe the industry is that cynical is that they are in complete denial. If the industry was not in denial, it would be running towards us with open arms, asking to see the evidence, to look at the evidence we have. They would be interested in the dots that we are inviting the parties to join up, but, more importantly, the industry would not place 44% of TCA main contacts in key HR roles in Europe’s second-largest infrastructure project. There has been no public apology. None of the 44 contractor companies that were members of TCA have apologised. They haven’t put their hands in their pockets and come forward with compensation, and they are still defending complaints to the employment tribunals on technical grounds, even where it could be proven that the name was on TCA’s list.
I do not see an industry in contrition. I see an industry that is thirsty for the highest level of profit margin. In addition, it is cut-throat. Unfortunately, we are in a race to the bottom in construction because procurement standards are not maintained. I think that Crossrail lost the plot. Crossrail said that they had three objectives. One was direct employment, the second was high health and safety standards and the third was good industrial relations. On all three counts none of that has transpired.
It is my belief, and I was told confidentially by a contractor contact, that the Crossrail requirement on contractors to directly employ workers as opposed to subcontract is not legally enforceable.
Q2665 Jim McGovern: When you say "direct employment as opposed to subcontract," do you mean workers going on site on a 714, an SC60 or what?
Gail Cartmail: Workers are going on site directly employed by a contractor company paying via more normal means-
Q2666 Jim McGovern: PAYE.
Gail Cartmail: Absolutely. I talked about just one aspect in respect of the people who do electrical cabling work-I can’t remember how many subcontractor companies I named-working on just one tiny part of this Crossrail project. I think I named three. If you chuck in EIS, that is four subcontractors working to BFK. That does not meet the definition of "direct employment."
Q2667 Chair: Can I just clarify on that? Presumably, the commitment to direct employment and the other principles was made by Crossrail centrally, so to speak, rather than by the main contractors like BFK. You are saying that that is not legally enforceable by Crossrail, but, surely, Crossrail can make it a condition of the tender.
Gail Cartmail: They can do, but whether that is legally enforceable is open to doubt. My information is that the requirement that Crossrail made that contractors, wherever possible, would directly employ operatives is not legally enforceable. That is from an industry contact. There is huge doubt about Crossrail following through on promises. For example-this is in my bundle-Crossrail says that it requires contactors to comply with the Ethical Trading Initiative base code. Please bear with me while I find the relevant document. It is appendix 7. I have here what Crossrail says about responsible procurement-"GLA’s 7 Themes." They are fair employment, supplier diversity, community benefits, skills and employment, ethical sourcing, environmental sustainability and workforce welfare. It claims "Union representation and workers’ rights." To our knowledge, the only unionised bit has been removed in the manner that I have described to this Committee this afternoon. This graphic chart also says, "Ensuring compliance with the 9 points of the Ethical Trading Initiative’s base code."
If you look at BFK-Supply Chain-it claims, "Ethical sourcing, including compliance with the ETI base code." (A bell sounded)
Chair: I am sorry, but the mention of "ethics" in a Commons Committee always makes the bell go.
Gail Cartmail: We have formally complained to the ETI about breaches of the base code, which supports workers, by stating, "Workers, without distinction, have the right to join or form trade unions of their own choosing and to bargain collectively. The employer adopts an open attitude towards the activities of trade unions and their organisational activities. Workers representatives are not discriminated against and have access to carry out their representative functions in the workplace. Where the right to freedom of association and collective bargaining is restricted under law, the employer facilitates, and does not hinder, the development of parallel means for independent and free association and bargaining," and so on and so forth. Our complaint to the Ethical Trading Initiative was that not only does Crossrail boast compliance with the nine points in the base code but BFK boasts compliance with the ETI base code.
In their response, the executive director of the ETI, wrote to us and said, "I have checked with my colleagues and can confirm that neither Crossrail, nor BFK are members of the ETI. However as you rightly point out they both publicly state that they use the ETI Code to guide their supply chain activity. ETI had conversations with Crossrail back in 2010 where we clearly advised them that ‘Asking suppliers to comply [with the base code] is one thing. Making sure they do and dealing effectively with non-compliance when it happens is quite another.’ We have not had any contact with them formally since."
It is my belief that Crossrail is not managing aspects of the ETI base code competently and, for all I know, any of the other seven themes. Certainly, on the evidence that we have, which we have given to this Committee, just take the one example of a foreman being instantly suspended for photographing hazards that he was reporting, I don’t think that that really shows BFK’s compliance with the ETI base code either.
Q2668 Chair: There is, obviously, a question for us about whether, in making recommendations to the Government, we raise this issue about promises being made by subcontractors or main contractors to the client being enforceable. Whether that is Crossrail declining to make them enforceable or having deliberately drawn them up in a way that means they are not enforceable, as distinctive from them never being enforceable, I do not know. Certainly, there are contracts in Scotland where my understanding is that they have been accepted within the spirit of the agreement and the subcontractors and contractors strove to meet the targets that they were set by the client. That is an issue for us to pursue, possibly with Crossrail as well as the Government, in the first instance.
Gail Cartmail: May I comment on that, Chairman? It is a question of debate as to whether or not, after Bechtel’s employment of the party that I referred to, they then disengaged when the whole blacklisting involvement came up. It is a matter of conjecture as to whether they deliberately picked him or not. Only Bechtel can answer that.
It is also a matter of conjecture whether or not Crossrail is incompetent as an entity or is engaged in a conspiracy. I am not a conspiracy theorist. I would never have believed that TCA existed in the way that it did until it was put in front of me. I would never have believed that a BFK representative would sit across the table at an ACAS conciliation not acknowledging a former role in blacklisting and being more open about that. It is a matter of conjecture.
I suppose my point this afternoon to the Committee is that the outcome is a car crash in respect of the issues that we are trying to raise here. On the ETI base code, I would say-and I think it is implied in the letter that I have just read out to you-that both Crossrail and BFK are passing off as being ETI base code-compliant. They were told, quite categorically, to make sure that they dealt effectively with non-compliance when it happens, but doing so is quite another thing. In other words, they were warned by the ETI of the dangers of just ticking boxes and paying lip service to the base code. Yet there was no further contact with the ETI in respect of the base code and compliance with it.
Chair: This is a major issue for us because, while we are discussing Crossrail at the moment, we are not so much concerned with Crossrail as the firms that are directly involved that you have mentioned, namely, BAM Nuttall, Ferrovial and Kier, all of whom have substantial contracts in Scotland at the moment. The strategies, tactics and practices that they are operating here on Crossrail have a read-across to what they might very well be doing in Scotland. It is that element that we want to pick up. Jim, have you finished the points that you were wanting to raise?
Jim McGovern: Yes.
Chair: Alan, there are a number of points that we asked you to pick up. I think that most of those have been covered. Is that correct?
Mr Reid: Question 7 has definitely been covered. Has question 8 been covered?
Q2669 Chair: On the question of whether or not there is any other evidence of blacklisting on Crossrail, you have indicated to us that there is nothing tangible.
Gail Cartmail: No. I believe this was a slip-up. I believe, in relation to the first vetting, there was a slip-up. This is the problem, isn’t it, that you alluded to? Finding people who have not succeeded in gaining employment by subcontactors on the Crossrail project is an impossible task. We are suggesting that, if you join up the dots, the evidence is quite convincing, but, importantly, the burden of proof should be reversed. There are loads of people talking about legislative change.
Mr Chuka Umunna, in the Opposition day debate, made a number of suggestions about how the protections against blacklisting could be changed, and I agree with all of that. But as I have gone through this particular case, and my eyes have been opened as a result of it, it speaks to me of the absolute importance, above all else, of the burden of proof being reversed. Where there is tangible evidence of blacklisting-not flimflam-that there is a suspicion that people are being blacklisted, the onus should be on the contractor company and the subcontractor to show that that is not the case.
Q2670 Jim McGovern: Surely, it is the potential employee who has been refused employment who has to pursue that in order for the potential employer to say no. Back in the mid ’90s, the Timex factory in Dundee was shut down. There was a major dispute, and most of the members involved were members of the AEEU at that time. The members of the shop stewards committee applied for various jobs after the dispute was over and were refused employment. They took various employers to tribunals and won them. If you are saying that the burden of proof should be on the employer, presumably the person who has been refused employment has to pursue the case first.
Gail Cartmail: Of course there are grounds by which we can pursue, through the employment tribunal, victimisation, non-engagement due to trade union activities and all of that, but that does not tackle blacklisting, because by its very nature it is underground and secretive. As I said earlier, I am increasingly feeling that blacklisting is more of a moral than a legal issue, but the law does not help. Because it is underground and secretive, it is not as tangible as the example you gave. It is very individual. There is a huge onus on individuals to come forward. Our union does its best to support people, but, if the onus of proof was reversed and companies were called to explain their behaviour, we think that would be a strong disincentive. Currently, there is no disincentive to an employer to cease secretive activities.
I believe it is the case that Pat Swift is looking at CVs and induction forms alongside a list. He only has to take a match to it and it has gone, but with regard to the behaviour and consequence of all that I have tried to explain to this Committee today, if there is an innocent explanation, let’s hear it.
Chair: The question of how we deal with that, the question of how you apply the burden of proof the other way, to whom does that burden of pass and to whom do they have to justify it leads us on to the next couple of points, which Graeme wants to pick up.
Q2671 Graeme Morrice: Maybe I should declare an interest in that I am a member of Unite the Union. I wanted to cover a couple of issues in general terms. As you will be aware, the Government introduced regulations to outlaw blacklisting in 2010. Do you think that these are perhaps not working, and, if so, why do you not think that they are working?
Gail Cartmail: I don’t think they are tough enough. As we know, nobody, apart from the late Mr Kerr himself, was punished in respect of the 2009 TCA exposure. Since then, the industry has not paid a single penny, except in those cases that they have lost. My view is that there should be very harsh financial penalties for blacklisting, including up to imprisonment where there is high-level conspiracy. It is a hackneyed phrase now-but it genuinely is true-that it ruins lives. I have mentioned that the burden of proof should be changed and parties that are not a direct employer of a blacklisted worker should be brought to account. Importantly, compiling a blacklist, irrespective of whether you have used it, should in itself be an offence.
Q2672 Graeme Morrice: What sanctions do you think should be taken against those companies that take contracts out in the public sector that have been shown to be engaged in blacklisting?
Gail Cartmail: My view is that the industry has been unrepentant, so we have 44 companies that are still bidding for public work. One thing that a company could do to show that it is repentant is to lead a movement in the industry to recompense anybody and everybody who was on TCA’s list. The second thing they could do is to apologise publicly.
Importantly, do you know what they could do? They could put blacklisted workers to work. Nothing other than that would show real contrition, which is why in our campaign to get Mr Morris reinstated, which is a high-level campaign and we are putting millions of pounds into it, we have said that there is no financial settlement that could be made. We will only accept Mr Morris’s re-employment, because, if his dismissal was so very innocent, he would be re-engaged. We believe that the industry, if it was really open to a different style of working, would look at the CVs of workers who have been blacklisted, unable to find work, and put them to work. I have met men who are finding it impossible to get jobs commensurate with their qualifications, who want nothing more than to work in the trade that they were apprenticed in.
Take Kier and BAM-the two parties bidding for Government and local government contracts. They could come to the table, admit their involvement, ask what could put it right, lead the debate that I suggested should take place in the industry, but, importantly, say, "Who have we got who has suffered a detriment due to blacklisting? Let’s put them to work."
Q2673 Jim McGovern: I mentioned earlier two sparkies-two electricians-from Dundee, who came down and gave evidence about blacklisting. Both are now retired, so the remedy that you suggest of getting them back to work does not apply. I am quite proud to say that the first demonstration in the UK against blacklisting took place in Dundee and it was organised by these two retired electricians. A lot of the people who were on that demonstration were retired but they had suffered blacklisting. Getting them back to work, if they are still of working age, is a great idea, but what about the people who have retired?
Gail Cartmail: As I mentioned, the 44, at least, should be leading a compensation fund, because the complexities of attempting to succeed in an employment tribunal case are really many and varied. Many changes need to happen to make that an easier and speedier process. Quite apart from anything else, by the way, people are time-barred currently. Don’t forget that the Information Commissioner’s Office has not yet completed the task of writing to people. They are only just seeking support from the Department for Work and Pensions to match names to addresses using DWP data. It is a disgrace. They had that information in 2009. They have done nothing with it to communicate proactively. Our union is desperately trying to use the information we have got from the ICO.
The problem you have alluded to is getting worse every day. More and more people will be past working age. If the industry wanted to make recompense, then, for those people, an apology would go a long way so that they had something to show their families for being on that list, despite whether they can prove a detriment for being on the list, and also some financial compensation. That would go some way in the manner that I described earlier of the rigger who put his evidence to an employment appeal tribunal, with the support of our union. The evidence did not stack up as far as those jurisdictions were concerned, and only this year, aged 70, has he found his name on the TCA’s list as a result of us getting the encrypted disk from the ICO. It is a heartbreaking story. He is so proud to be able to say that he now has proof. You have no idea what that means to his family. An amount of money, an apology and a commitment to clean up their act would go a long way.
We have discussed vetting. An employment tribunal judge described vetting as anything other than innocent. In the interim report of this Committee, the Chairman referenced vetting. I am telling you that we have evidence of vetting being a system by which people are deprived of employment.
One of our key priorities as a trade union is to get the industry to come clean. If you have a subcontractor who has done all the checks, why put forward an induction form for vetting? Why do that? What does an induction form tell you? It tells you that somebody has been to an induction, that is their name and that is their date of birth. If that is not a check against a blacklist, I have no idea what it is for. The man who ran the now bankrupt company, EIS, had no idea either formally, but, informally, it must be commonly known in the industry what goes on.
Q2674 Jim McGovern: At the risk of sounding pedantic, you mentioned men who have been subject to blacklisting. A colleague of ours, David Hamilton, who is the MP for Midlothian, who was jailed during the miners’ strike, made a contribution on the debate in the House of Commons. He made the point that his wife was blacklisted because she was married to him. It goes right through families probably.
Gail Cartmail: Yes. We heard Mrs Kerr on the "Panorama" programme, Chairman, making a staggering statement about thousands of performers in the Dome going through TCA, among whom would have been many women. I am sorry, but I am looking quite narrowly about what I am exploring with the Committee today, which is if you work in construction. I take your point totally. You have made a good point. Mrs Kerr, clearly, was not gender-discriminatory in her activities.
Chair: Some of the names on the list were of women, and some of the names on the list, as I think we mentioned in our report, referred to somebody as being "believed to be the father of" or "son of" and so on.
Jim McGovern: "He is innocent, but his wife is a communist."
Q2675 Chair: That is right. Before we come to some wider questions, can I just try and clarify one or two outstanding points? Have you had any inclination or any evidence that any evidence has been provided by the police, not to the TCA but to individual companies about individuals, because that is something that I have been approached about recently?
Gail Cartmail: Chairman, I have not seen the unredacted files. I have only seen a small portion of unredacted files. I cannot say that this is my evidence, but some of the terminology and language that is quoted in some of the descriptive files, if you know what I mean-you have the electronic list of names and then you have the manually-kept records-smacks of police or security involvement.
Q2676 Chair: That is right, but beyond the Consulting Association.
Gail Cartmail: I have no evidence.
Q2677 Chair: We have drawn from you discussions that took place in ACAS. Can I just clarify whether or not there have been other discussions between either you or other union reps about the Frank Morris case, and whether or not there were attempts at conciliation or discussion, or were those only in the ACAS meetings?
Gail Cartmail: The regional officer, Mr Harry Cowan, strenuously attempted to rescue the situation. The owner of EIS himself had discussions with Mr Cowan. I quoted from his letter. He explained his frustration with this whole situation. I contacted the HR lead at Crossrail. I asked her should she not step in. This seemed to me, even then, without knowing what I know now, to be an entirely avoidable situation. It is a project paid by taxpayers’ money; it is a public procurement project. Surely, given the standards that they seek to aspire to and all the rest of it, they would want to avoid this situation.
I believe that the person in Crossrail to whom I spoke did speak to BFK, and I believe she spoke to Mr Swift. I believe that Mr Swift convinced her that there was nothing wrong. In fact, he nearly convinced me that there was nothing wrong in the conciliation. It is very compelling, isn’t it? Then you look at the facts, you go back to the next meeting and you challenge a statement that was made, but it is the lack of curiosity on the part of Crossrail that I found staggering. The next time I heard from this person at Crossrail was when she phoned me to reassure me that I should not be too worried because the person airlifted with, I think, 70% burns, was capable of speech.
Q2678 Chair: Going on from that, can I ask whether you or the union as a whole have spoken with any of the three main contracts-BAM, Kier and Ferrovial-either about this particular case or the general question of blacklisting?
Gail Cartmail: I spoke extensively personally over two conciliation sessions of some great length. While I was away, my colleague, Tony Burke, assistant general secretary, stood in for me and he spoke extensively. That was with the BFK HR lead, Mr Swift. His exact words were that Mr Morris is unemployable.
Q2679 Chair: Mr Morris is unemployable.
Gail Cartmail: Unemployable. If I can just explain, Chairman, you go to these meetings in good faith, bright-eyed and bushy-tailed because you want to conciliate; you want a solution. Our key objective, as I kept mentioning, is getting people back into work. You believe you are meeting honest brokers. It was only by a process of stripping away the reasons that were given why this was not possible that we got to a rather sinister description by Mr Swift of his impression of Mr Morris, which was gleaned from various sources, I imagine. By this time, Mr Morris had staged a protest at Westbourne Park against the treatment that he had suffered. It was then said to me by Mr Swift that the reason that he is unemployable now is because of the protest. So the goalposts kept shifting.
It is not normal for an assistant general secretary in the UK’s largest union to spend three days in conciliation over the reinstatement of one person, but it seemed to us extremely important. We are now campaigning to draw attention to Mr Morris’s case because we think it is a case study of blacklisting. We are talking to the investors in BAM, Ferrovial and Kier. We are talking to local government. We have a stand currently today and tomorrow at the Local Government Association conference asking local councils to question BAM and Kier in respect of their employment practices.
As I have mentioned, we are engaged with the Ethical Trading Initiative, with the objective of bringing BAM, Kier and Ferrovial, as a joint entity, to the table to resolve this issue. Our bottom line is that we demand a job for a blacklisted worker. We think that is a reasonable demand. We will continue with this until we succeed in achieving that objective.
Q2680 Chair: Can I just clarify what you are calling on local authorities, health boards or, say, organisations in Scotland to do about this particular case? Are you asking them to blacklist the blacklisters-not to give contracts to BFK?
Gail Cartmail: We have suggested to local authorities that there is a reputational issue in relation to procuring from known blacklisters. We think there is evidence that they are still at it. If they have already given a contract, then surely those contracting companies should be brought in to discuss their employment practices. Those are practical actions that councils can take, and councils are taking those actions.
Q2681 Chair: It would probably be helpful if you wrote to us and gave us an indication of what exactly it is that you are seeking. As you will be aware, we put out a further consultation on various topics. The question of what other people-third parties- should do about contracts was not one of the points that we looked at, but it might very well be something that we would want to make a recommendation about fairly soon. Have you had any discussions with BAM, Kier or Ferrovial directly about their position? You mentioned their investors as well. Can you clarify what is happening there?
Gail Cartmail: Together with our director of organising and leverage, I was asked by Ferrovial to meet with their representatives, whom they flew in to Heathrow one Saturday a few weeks ago. We explained the situation to them. They had no knowledge, by the way, of the Ethical Trading Initiative or base code, and they claimed to have no knowledge of the current situation.
It is important for me to repeat what I said earlier, which is that, when Ferrovial bought Amey, the company Ferrovial extracted Amey from TCA. Ferrovial is a Spanish-based company. It has no record of blacklisting. It has good industrial relations with our sister unions in Spain, but it is in bed now with BAM and Kier. We met them. They found the evidence that we showed them to be very concerning. They flew in again. I gained the impression, as did my colleague, that we could probably have got any amount of money. We could probably have got access for trade union organisation, but the one thing that was an absolute no was the reinstatement of Frank Morris. It seemed to us, and it is fair to say it was stated, that they did not have the power to force BAM or Kier to agree to re-engage Frank Morris.
We asked them, if the dismissal of Frank Morris and the termination of the EIS contract were innocent, "What’s the problem?" I paraphrased back to them what I felt I had heard, which was that BAM and Kier had the power to fire, but Ferrovial doesn’t have the power to hire. I think that is an accurate description of the situation. It is possible that we may have a meeting with BAM in the future. That is to be confirmed. Any meeting now that we have with any of the parties will be on the premise that it is our absolute belief that Mr Morris and any of the other EIS former employees who still are not in work should be offered work on the Crossrail project.
Q2682 Chair: We have concentrated on Mr Morris, but there were 27 innocents who, as far as we have heard, were completely uninvolved in any union activity and were just simply collateral damage. We have no idea where they are at all, or do we?
Gail Cartmail: We know that most of them got jobs. The one who found it the hardest to get a job was the one who stood with Frank Morris outside the Westbourne Park site for a little while, although not very long. Frank had received a warning that anybody who stood with him would never get a job on Crossrail. In his letter to us, the former owner of EIS described the experience of these people in some detail and his efforts to find them jobs, but the one person who had been identified with Frank Morris was the person who had the longest period of unemployment.
Q2683 Chair: Is he working now on Crossrail?
Gail Cartmail: Not on Crossrail-not to my knowledge.
Q2684 Chair: On a wider point, you mentioned earlier on that there were people in the industry who were continuing to defend tribunal cases on technicalities and the like. Were these individuals who were on the Consulting Association blacklist, who were pursuing tribunal cases against the companies, and the companies were defending them on technicalities such as being out of time and all the rest of it?
Gail Cartmail: I can’t think of a single example where an employment tribunal level 1 application has been made and an employer has stepped forward and said, "Do you know what? Hands up. We did it." To be honest, it would be the obvious response. You have got a list; it is there; the company is named on the list; that is the reason for the litigation. So it is pretty clear that the company has picked out this person. It would be refreshing if the response to an employment tribunal application was, "Yeah, fair cop, guv. I done it." I am not being flippant, Chairman. Also we have the problem of a huge swathe of people-the majority-not knowing that they are on the list.
Q2685 Chair: I understand that. That is a different problem. We are pursing the question with the Information Commissioner and the trade unions of what information is available. That is a separate issue. I want to be clear. It has to do with the question of regret, really. It undermines any protestations of regret by the companies if they are resisting every particular occasion when they are being taken to a tribunal for blacklisting, doesn’t it?
Gail Cartmail: Yes.
Q2686 Chair: It would be helpful if you could let us know of cases and which companies are involved where they have been trying to avoid tribunals or losing tribunals on technicalities, because that certainly is an indication of the attitude that they are taking on these matters.
Gail Cartmail: That is a very fair request. When I checked, we now have a lawyer who is the custodian of all our blacklisting cases, including those individuals to whom I wrote, following being able to identify them from the TCA database to our membership database. It is a full-time job now, which implies that strenuous efforts are being made to defend those cases, because there was not a huge number. We write to people and invite them to check that they have a file, and then we give them absolutely red-carpet treatment in respect of an employment tribunal application. He is singly and fully engaged on those cases. I will get a list of current cases.
One of the key issues here-it is another problem with the current regulations on blacklisting-is the problem of time bar. I don’t know of a single example of an employer saying to an employment tribunal, "With respect, judge, we don’t want you to pursue the time bar problem because we admit that there would be difficulties in knowing you were on the list." I can’t think of a single example of that.
Chair: If we decide that we want to pursue this matter with, say, Scottish local authorities, health boards or the like, about which companies have no regrets about blacklisting, an indication of whether or not they are continuing to defend tribunals and rule them out on these sorts of grounds would be one of the points that we and the local authorities involved would want to take into account.
Unless there are any other questions, this is an appropriate point to draw this hearing to a conclusion. Jim, I see that you want to raise another point.
Q2687 Jim McGovern: It is not so much a question as an observation. I am sure we have taken evidence-I don’t know if it was from Ian Kerr, Cullum McAlpine or even from the ICO-that a lot of the records were destroyed. I don’t know if you are aware of that, Gail. How do we track down who was on the list if the records don’t exist any more?
Gail Cartmail: You heard evidence from the ICO representative that they seized only a fraction of the material held by TCA. You also heard from Mr Kerr that he had destroyed everything, and then Mrs Kerr, after that, brought forward further evidence. We have no idea, do we, what is out there? What we can do is knuckle down, work with what we do know in respect of what is in the public domain, and be vigilant in drawing attention to where we think there are examples of lists being used, and, in particular, as I have been at pains to point out, Chairman, in respect of contractors vetting subcontractors or employment agency staff.
Q2688 Chair: The final point that we always put to people is, are there any answers you had prepared to questions that we have not asked? We gave you the opportunity at the beginning to say a whole chunk of stuff, and I think we have covered the field fairly well. Just in case there is anything that you think we have overlooked, do you want to raise any other points?
Gail Cartmail: I don’t think so, Chairman. It is a huge responsibility in giving evidence to this Committee. I think that this Committee is doing an incredible job in shining a light in very dark corners. I wanted to thank the Committee for patiently listening to my evidence and bearing with me when my replies were not perhaps necessarily directed to the questions you asked but perhaps to what I see as tangentially connected points of concern.
Chair: There are a number of points on which we have asked you to give us further evidence. We are also looking forward to having you and the other unions responding to our request for further evidence of recommendations. It may be that we see you again at some stage in the future. At the moment, we can draw things to a close.