2 Addressing the crimes of the past |
8. In our previous report, we presented evidence
which identified that a number of major construction companies
had been members of The Consulting Association (TCA), and paid
for the 'name checking' services provided by them.
On 10 October 2013, eight of those companies, who are due
to face litigation in the High Court (Sir Robert McAlpine, Balfour
Beatty, Carillion, Costain, Kier, Laing O'Rourke, Skanska and
Vinci), announced plans to develop a scheme that will pay compensation
to those workers whose names were held by TCA.
9. We have written to all the companies that have
been implicated in using the services of TCA, but who have yet
to sign up to the scheme to ask for the reasons why they have
not signed up. Several companies have replied, indicating that
they are waiting for the final details of the scheme to emerge
before making a decision.
Others have denied making any use of TCA's blacklisting service,
or were not contacted about signing up to the scheme.
Copies of the replies received to date have been published on
the Committee's website.
We will review all responses in due course.
10. The proposed details of The Construction Workers
Compensation Scheme (TCWCS) were announced in November 2013:
· Compensation payments are anticipated
to start from a base of £1,000 per person up to a maximum
of £100,000 per person.
· There will be no admission of liability
by the companies involved in the scheme.
· Workers taking part will be required to
drop all other legal claims.
· There will be a 'twin track approach',
with the fast-track offering workers fixed amounts depending on
the information contained on their blacklisting file. A longer
review would examine losses suffered by the worker. The latter
process is intended for more serious cases.
· There is no intention to hold hearings
into blacklisted workers' claims. The majority of cases will be
resolved on paper. 
11. A spokesperson for the scheme claimed that it
was designed to "provide affected workers with a genuine
and preferable alternative to High Court action by removing many
of the hurdles that would be faced through litigation and offering
much faster access to compensation payments".
12. However, representatives of The Blacklist Support
Group and a number of trade unions representing construction workers
reacted angrily to the proposed scheme.
Steve Murphy, General Secretary, UCATT, described it as "a
complete travesty of justice" on the grounds that the levels
of compensation suggested were inadequate and that the companies
involved refused to accept liability.
Phil Whitehurst, National Officer for Construction, GMB,
told us that "[contractors] are after a cheap package to
vindicate what they have done" and "putting a gagging
order on it as well is an absolute shambles".
Bernard McAuley, National Officer for Construction, Unite, commented
that the way that the construction companies have "tried
to exclude the trade unions and deal directly with individuals
clearly shows contempt".
13. On 3 February 2014, the first full round table
talks for TCWCS took place. Dave Smith, of the Blacklist Support
Group criticised the offer of £1,000 compensation as a "fast
track alternative to justice" and said that the ball was
now firmly in the court of the employers to respond to the demands
of the employees. No agreement was reached at these talks.
Identifying the victim
14. One of the key concerns raised in relation to
the scheme was about the criteria for individual eligibility for
receiving compensation, and how eligible individuals would be
identified and notified. Blacklisting is a covert procedure, and
therefore there are a number of complex issues involved in identifying
who should receive compensation. Many of those who are on the
blacklist are unaware that this is the case, and so would not
see any reason to claim. In November 2013, the ICO took steps
to remedy this by using information that it had received from
the Department for Work and Pensions to write to approximately
1,200 individuals on TCA's blacklist.
In an update received on 31 January 2014, the ICO told us
that it had since contacted a further 500 individuals. It had
also responded to 1,500 individual subject access requests.
It remains unclear how many individuals were blacklisted and we
are concerned that steps taken to date have not met with the level
of success that we believe is necessary.
15. Furthermore, others cannot be contacted as they
have died since the list was compiled. The ICO has identified
approximately 250 such cases to date.
This raises the question of whether compensation is due to dependants.
Suffering as a result of blacklisting goes beyond those who are
named directly on any list and can 'prove' that they suffered
employment discrimination as a direct result of this.
Witnesses suggested that the scope of those who can claim compensation
should be broad. Jane Hutt AM, Minister for Finance, Welsh Government,
pointed out that:
We talk about the "victim" of blacklisting.
However, there could be a case whereby it is not just the member
of the workforce or the person who did not get the job who is
affected, but the family as well...it seems to me, very clearly,
that it is "victims", through loss of earnings or distress
16. We welcome the steps taken by the eight construction
companies who have set up a compensation scheme for victims of
blacklisting. We understand that discussions are underway between
interested parties so will not comment on either the details of
the scheme or the progress of the negotiations at this stage.
However, we would expect that the key principles of apology, adequate
compensation - not only for possible loss of earnings - and employee
assistance for those still of working age, will form key parts
of any agreed scheme.
17. All the information available to us suggests
that most of the firms involved would have continued to use TCA
and its sinister and odious practices had they not been caught.
This view was epitomised by the appalling performance at the Committee
by Stephen Ratcliffe, Director, UK Contractors.
In these circumstances, the onus lies with the construction firms
involved to clearly and unequivocally demonstrate that their repentance
is genuine. This will not be achieved by parsimony, whether of
cash or of spirit.
18. We are also aware of fears that, in the event
of a disagreement between the negotiators, there will be a unilateral
introduction of a compensation scheme. We believe that, to be
accepted as valid, any compensation scheme will have to be agreed
between representatives of the sinners and representatives of
the sufferers. We would regard any unilateral introduction of
a compensation scheme to be an act of bad faith by those involved,
likely to be motivated by a desire to minimise financial and reputational
damage rather than being a genuine attempt to address the crimes
of the past.
19. We welcome the efforts of the ICO which have
been made to date, particularly its work with the DWP, to identify
and contact those individuals who were blacklisted and may be
eligible to receive compensation. However, we are concerned that
there may be many more individuals who may need to be contacted.
We recommend that all parties involved be brought together in
order to discuss how best more victims can be contacted. We also
endorse the view of the Welsh Government and others that the families
of victims should also be eligible for compensation when the original
victim has passed away.
11 Our previous report listed these companies: Amey,
AMEC, BAM Nuttall, B Sunley and Sons,Balfour Beatty, Ballas,CB&I,
Cleveland Bridge UK Ltd, Costain, Crown House (Carillion/Tarmac),
Diamond M&E, Dudley Bower & Co Ltd, EMCOR (UK) plc, Haden
Young, John Mowlem Ltd, Lovell Construction Ltd, Miller Construction
Limited, Morgan Sindall, Morrison Construction Group, N G Bailey,
Renew Holdings plc Shepherd Engineering Services, Sias Building
Services, Spie Matthew Hall. Sunley Holdings plc, Taylor Wimpey,
Turiff Construction, Tysons Contractors, Walter Llewelyn and Sons,
Whessoe, Wilmott Dixon Ltc, and Vinci
BAM Nuttall, EMCOR, NG Bailey Back
Amey, Shepherd Group, Whessoe, Renew Holdings, AMEC, Miller Construction,
Galliford Try (on behalf of Morrison Construction Group), Spie
Matthew Hall, Taylor Wimpey Back
Willmott Dixon Back
Letter to the Chair from the Deputy Commissioner, ICO, 31 January
Qq 2689-2948 Back