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Employer`s refusal to employ trade union members was lawful

12 April 2013 #Employment

Miller and ors v Interserve Industrial Services Ltd was a recent case in the Employment Appeal Tribunal concerning alleged blacklisting of union members. Interserve Industrial Services Ltd (IIS) provides workers for the oil industry and the 3 claimants were members of Unite the Union who had a history of acting as shop stewards. IIS and the trade union had a collective agreement that they would, as far as practicable, appoint a shop steward to each of its projects. In March 2010, C, a full time Unite official telephoned J, an IIS recruitment manager, requesting that the 3 claimants be employed on a new project on the bases that the agreement gave Unite the right to nominate its members with a view of acting as shop stewards. When none of them were appointed, and two failed to secure work on another IIS project they lodged tribunal proceedings.

The Claimants complained to the tribunal that they had been refused employment because of their union membership and that they had been blacklisted from further work with IIS. The tribunal accepted that as a result of the conversation J had had with C he placed the claimants on a ‘mental list’ of people he did not wish to employ, however they found that this was because he resented the interference and wished to reserve the right to employ as he saw fit. The claimant’s argument that the ‘mental list’ was effectively a blacklist was rejected and the tribunal agreed that J’s motivation was not based on trade union membership, rather the fact of being dictated to.                                         

The claimants appealed to the EAT who upheld the original decision and made further comments that:

  • IIS was entitled to put down a marker as to who can dictate employment and still stay on the right side of the law;
  • The claimants were unfortunate to be caught in the crossfire between C and J, however there is no law of ‘unfair non-recruitment’;
  • In each case such as this the employers explanation should be ‘scrutinised narrowly’ as to why trade union members were not employed, however on this occasion they passed this test.

Tribunal cases based on blacklisting are rare, it would appear that the key problem unions face is proving blacklisting is taking place. After this ruling it would appear that the already high level of proof required has been raised a little higher.

Chris Griffiths
LPC Student, University of South Wales

Clarkslegal, specialist Employment lawyers in London, Reading and throughout the Thames Valley.
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