Consulting Association

The Consulting Association
Predecessor Economic League
Formation 1993 (1993)
Extinction 2009 (2009)

The Consulting Association (TCA) was a controversial UK business (described by its key figure as "a non-profit making, unincorporated trade association"),[1] based in Droitwich, which, from 1993 to 2009, maintained a database of British construction workers and became implicated in a "blacklisting" scandal, which is ongoing. Revelations about the database resulted in the business being shut down, prosecutions, the Employment Relations Act 1999 (Blacklists) Regulations 2010, a Parliamentary enquiry, High Court actions leading to compensation payouts valued at between £50m and £250m in total, and a series of cases being brought to the European Court of Human Rights.

Background

The Consulting Association was established in 1993 as a successor to the Economic League, which had held the construction industry's blacklist[2] but which had been wound up in 1993 after a parliamentary enquiry and bad press.

Construction company Sir Robert McAlpine Ltd invested a total of £20,000 in founding TCA,[1][3] buying the previous blacklist database from the Economic League and hiring one of its former employees, Ian Kerr, as manager[4][5] (McAlpine also invested £10,000 in founding another Economic League spin-off, CAPRiM, on the understanding that they would not interfere with the Consulting Association).[6][7] In press releases and written testimony submitted to the Scottish Affairs Committee by its director Callum McAlpine, the company claimed that "at least 14" major construction and civil engineering companies colluded in forming The Consulting Association.[3][8] This was corroborated by Kerr's written statement.[1]

Blacklisting

The database, often referred to as a "list" in the press[9] and by one of its founders,[1][10] operated as a blacklist[2][9][11] against workers who were active trade union members or otherwise vocal on matters such as health and safety violations by their employers.[12] Many of the workers were on the list having been accused by previous employers of being "troublemakers"[13] or "militant";[13] other notes in the database referred to subjects' personal and family relationships,[13] and those who had pursued an employment tribunal.[13][14]

Workers who were on the list allege they were deprived of their livelihoods as a result of their inclusion, with supporters claiming their human rights have been breached. Following initial newspaper reports in 2008, arising out of an investigation into worker dismissals during construction of Manchester Royal Infirmary,[15] and Information Commissioner's Office (ICO) action in early 2009, it emerged that the Consulting Association held files on about 3,213 construction workers, including political activists, environmentalists, shop stewards and health and safety representatives (it was later alleged that the 3,213 was only a tiny proportion, and that up to 95 per cent of TCA files were left untouched, leading to speculation, denied by the ICO, that 60,000 workers could have been blacklisted).[16] The list included some 240 women, many associated with environmental campaigns,[17] including activist Helen Steel, involved in the 'McLibel case'.[15]

The files included phrases such as “will cause trouble, strong TU trade union”, “ex-shop steward, definite problems”, and “wears anti-Nazi League badges and insignia”, with union membership often the main criterion for inclusion.[13][15]

Member organisations

Bovis and G. Percy Trentham were involved at an early stage, but dropped out.[18] The ICO listed over 40 construction companies who were current or previous users of the Consulting Association:[19]

It has been suggested that after March 2009 blacklisting may have continued via employment agencies.[22]

Trade union collusion

Ian Kerr described "A particular relationship between an HR manager in a particular area and the regional officer of the union."[1]

An employment tribunal revealed that Liz Keates of Carillion had a meeting with various other employers, and Amicus official, Roger Furmedge, to discuss denying access to work for members of another union, TGWU/EPIU on the Manchester Piccadilly site.[23][24]

Extract from an individual workers' blacklist file held by The Consulting Association:[25]

“Further note via 3293 M.C. BMcA states “He's alright, a good electrician. Ex rugby league player – gave up due to serious injury. Could be a handful if he wants to be.” Assumption from this is that BMcA would have indicated if above was sided either with D Simpson or EPIU faction. However, view was “He'll be in the know and be demanding of everything that's due and possibly more". (3292 main contract (I.C.))

Key:

Stephan Quant claimed to have brought several trade union officials to his club, the Naval and Military, for a meal. He further claimed that "I had close relationships with UCATT, particularly a bloke called Jeremy Swain in London. I first met Swain in 1991, when he was just a regional officer, so I've known him for 20 years."[25]

In 2013 UCATT executive council announced that, from 2014, industrial relations managers would no longer be invited to conference.[25]

Police collusion

MI5, Special Branch and the Special Demonstration Squad all spied on trade unionists.[25][26]

Revelations also pointed to police collusion. In Autumn 2012, the Blacklist Support Group appointed Christian Khan solicitors to submit a complaint over detailed surveillance documented within certain consulting association files to the Directorate of Professional Standards. The Directorate initially dismissed the accusations until the Independent Police Complaints Commission (IPCC) stepped in to conduct its own investigation in February 2013.[27] In October 2013, the IPCC confirmed that the police had colluded in the blacklist, saying it was "likely that all special branches were involved in providing information" to the list.[28]

A clandestine National Extremism Tactical Co-ordination Unit (NETCU) police officer attended one meeting with eight company human resource managers.

In March 2015, Theresa May announced that Christopher Pitchford would lead an inquiry into undercover policing. Setting out the inquiry’s terms of reference in July, Pitchford said it would ‘not examine undercover or covert operations conducted by any body other than an English or Welsh police force’. The Blacklist Support Group, which along with Ucatt has been given core participant status, has raised concerns that it will be difficult for Pitchford to deliver truth and justice within his stated remit, given that so many allegations refer to dealings between the police and private companies.[29]

Information Commissioner's Office action

On 23 February 2009, the company's office was raided by the Information Commissioner's Office, which served an enforcement notice against TCA under the terms of the Data Protection Act. Only 5% to 10% of the material that was available in the office was seized.[25] Files on members of the RMT[25] as well as on around 200 environmental and animal rights activists were among the material that was not seized.[25] The ICO said its action followed a 28 June 2008 article by journalist Phil Chamberlain, published in The Guardian.[30]

The ICO set up a telephone enquiry service for people who suspected they might be listed on The Consulting Association's database, receiving by November 2013 over 4,000 calls. It also wrote to 103 people identified by their address, and received over 1,200 written requests, from which 467 individuals were provided with copies of their information.[31]

An independent Blacklist Support Group, formed in the spring of 2009, campaigned for justice for victims of the database. After mixed results within the tribunal system due to the tight time constraints and employee status placed within legislation, the group took up civil claims which received attention before the High Court of Justice in February 2013. The human rights solicitors Guney, Clark and Ryan (GCR) were entrusted in delivering these multiple cases against the biggest subscriber to the database, Sir Robert McAlpine Ltd; Construction News reported McAlpine was facing a £17 million High Court claim from blacklisted workers.[32]

Ian Kerr was prosecuted for failing to register as a data controller. He pleaded guilty and was fined £5000 in July 2009;[31] he died in 2012.[33] Enforcement notices were issued against 14 construction businesses:[31]

  • Balfour Beatty Civil Engineering Limited
  • Balfour Beatty Construction Northern Ireland
  • Balfour Beatty Construction Scottish & Southern Limited
  • Balfour Beatty Engineering Services (HY) Limited
  • Balfour Beatty Engineering Services Limited
  • Balfour Beatty Infrastructure Services Limited
  • CB&I UK Limited
  • Emcor Engineering Services Limited
  • Emcor Rail Limited
  • Kier Limited
  • N G Bailey Limited
  • Shepherd Engineering Services Limited
  • SIAS Building Services Limited
  • Whessoe Oil & Gas Limited

The pressure group Liberty wrote to the UK Information Commissioner, Christopher Graham, accusing him of inaction over a privacy scandal that it compared to the News International phone hacking scandal. In August 2012, Liberty threatened to take the UK government to court to force an investigation into the case.[9][11] The legal officer for Liberty, Corinna Ferguson, told the The Independent: "We can't believe the inaction of the Information Commissioner on a human-rights violation of such wide public interest."

Scottish Affairs Select Committee inquiry

The Scottish Affairs Select Committee convened an inquiry.

Key witnesses including the late Ian Kerr and Cullum McAlpine gave evidence relating to the Consulting Association. McAlpine was the founding chair at its inception in 1993 and remained as chair for four years, having been invited, he said, by Percy Trentham who wanted a major civil engineering contractor to front TCA.[34] McAlpine also stated that his company paid the £5,000 fine handed down to Ian Kerr in 2009 upon being found guilty of failing to register TCA under data protection laws. McAlpine also admitted in his evidence that names of potential employees were checked against the database of names for work on the multimillion-pound 2012 Summer Olympics up until as late as the Autumn of 2008.[34][35]

McAlpine projects where workers were vetted by TCA included: Colchester Garrison, shopping centres in Bristol and Leicester, an MoD project on Salisbury Plain, the M74 link road, the Quarter Mile project in Edinburgh, the Marie Curie Centre in Glasgow, and groundworks for the Olympic Stadium.[34]

An interim report from the Committee was published in March 2013, stating the committee intended to continue examining what happened in the past and to launch consultations on further topics including: whether blacklisting continues, compensation issues, penalties for blacklisting, and potential legislative changes.[18]

The Committee published its final report in March 2015. While acknowledging that some positive steps had been taken, it said "many questions in relation to the practice of blacklisting remain unanswered", and recommended a full public inquiry as a matter of priority in the new Parliament.[36]

Crossrail

In 2012 the multibillion-pound London Crossrail project faced accusations and evidence that blacklisting was still being practised, on the biggest construction contract in Western Europe. Crossrail's industrial relations manager Ron Barron, employed by Bechtel, had routinely cross-checked job applicants against the Consulting Association database.[14] An employment tribunal in 2010 had heard that he introduced the use of the blacklist at his former employer, the construction firm Chicago Bridge & Iron Company (CB&I), and referred to it more than 900 times in 2007 alone. He was found to have unlawfully refused employment to a Philip Willis, with aggravated damages awarded because Barron had added information about Willis to the blacklist.[14]

Consequences

Construction Workers Compensation Scheme

In addition to the court proceedings against Ian Kerr and the enforcement actions taken by ICO, on 10 October 2013, eight construction firms which had been involved in the blacklist apologised for their actions, and agreed to pay compensation to affected workers; the Construction Workers Compensation Scheme was established in July 2014.[37] The eight firms were Balfour Beatty, Carillion, Costain, Kier, Laing O'Rourke, Sir Robert McAlpine Ltd, Skanska UK and Vinci. However, affected workers said their legal action for compensation would continue;[38] the eight firms backing the compensation scheme were joined in the court action by AMEC and BAM.[39] The GMB union declared the compensation scheme a "PR stunt",[37] while the final report of the Scottish Affairs Select Committee described the scheme's launch as "a deliberate attempt to mislead" and "an act of bad faith".[36]

High Court action

More than six years after the 2009 ICO raid, nearly half the 3,213 people with Consulting Association records had yet to be traced. Further employment tribunals were scheduled during 2015, claims to the European Court of Human Rights were waiting to be heard,[15] and a High Court case was originally scheduled to be heard in May 2016.[40]

In October 2015, during preliminary stages of the High Court case, the eight firms were reported to have admitted liability and to have apologised, but the case was set to continue as the companies did not accept the loss of earnings that the victims of blacklisting had suffered.[41] In January 2016, the companies increased compensation offers to victims of blacklisting as the High Court action loomed, but the Blacklist Support Group said "Many blacklisted workers have point blankly rejected the insulting offers and are determined to carry on to full trial."[42] On 22 January 2016 the High Court ordered 30 construction firms to disclose all emails and correspondence relating to blacklisting by 12 February 2016[43] after it emerged that managers at Balfour Beatty referred to blacklisted workers as ‘sheep’.[44]

Settlements

However, some settlements were eventually agreed. In February 2016, the UCATT union said 71 of its members had received a full and final settlement for compensation (for breach of confidence/misuse of private information, breach of the Data Protection Act 1988, defamation and loss of earnings), receiving a total of £5.6m between them; the average settlement was around £80,000, with some settlements as high as £200,000.[45] A further £15-20m plus legal costs was paid out to 180 workers up to mid-April 2016.[46] That same month it was reported that Cullum McAlpine had refused to appear as a witness in the High Court hearing, a Unite union claim disputed by Sir Robert McAlpine.[47][48]

At the time of the February payouts, UCATT was still negotiating a further 89 cases ahead of the scheduled May 2016 trial; in April 2016, the Blacklist Support Group said 154 live claims remained plus 82 recently issued new claims. At the end of April 2016, the eight construction firms settled the litigation between them and individuals represented by UCATT, GMB and legal firm GCR; blacklisted workers represented by the Unite union had yet to settle.[49][50] The High Court hearing relating to around 90 victims represented by Unite was subsequently postponed,[51] and settlement of these cases was then reported on 9 May 2016, with 97 workers receiving payouts of between £25,000 and £200,000, bringing the total payout to Unite members to over £10m.[52][53] The GMB said its settlement was £5.4m, shared by 116 blacklisted workers, with individual payouts ranged from £10,000 to £200,000; full legal costs of almost £3m were also reclaimed from the companies in this settlement.[53] On 11 May 2016, a 'formal apology' from the forty firms involved was read out in court and the case (Various Claimants v McAlpine & Ors) was brought to a close.[54]

Estimates of the total cost of settlements (including union-achieved settlements, those won by legal firm GCR which secured £6.6m for 167 victims, plus payments via the Construction Workers Compensation Scheme) ranged from £50m[49] to £75m (covering 771 workers, awarded an average of £65,000; plus legal costs on both sides estimated at £25m)[55][56] to £250m (based on a Morning Star figure).[50] One of the contributors to the Construction Workers Compensation Scheme, Carillion reported in August 2016 "a non-recurring operating charge of £10.5 million" representing the compensation and associated costs it expected to pay under the scheme.[57]

Cover-up allegations

The legal settlements meant the construction firms were spared from public revelations about their involvement with the Consulting Association, but allegations that Sir Robert McAlpine and others had engaged in a cover-up continued. However, the victims were set to demand a police investigation into claims that key executives tried to pervert the course of justice.[58]

External links

References

  1. ↑ Carillion's inclusion in the list was presumably mainly due to its previous ownership of Crown House (acquired by Laing O'Rourke in 2004). Carillion made two voluntary submissions to the House of Commons' Scottish Affairs Committee, one in September 2012,[20] and another in March 2013 relating to its involvement with TCA.[21]
  1. 1 2 3 4 5 Kerr, Ian. "Written evidence from Ian Kerr" (PDF). Scottish Affairs Committee. Scottish Affairs Committee. Retrieved 7 September 2015.
  2. 1 2 "Blacklisting in Employment: Interim Report (Conclusions and recommendations)". Scottish Affairs Committee. 16 April 2013. "Paragraph 2". Retrieved 14 October 2013.
  3. 1 2 "Written evidence submitted by Cullum McAlpine, Director of Sir Robert McAlpine Ltd.". Scottish Affairs Committee. 17 January 2013. Retrieved 14 October 2013.
  4. ↑ Rob Evans, Severin Carrell and Helen Carter, The Guardian, 27 May 2009, Man behind illegal blacklist snooped on workers for 30 years
  5. ↑ Phil Chamberlain, Lobster, The construction industry blacklist: how the Economic League lived on, Lobster 58, Winter 2009/10
  6. ↑ "Scottish Affairs Committee, Blacklisting in Employment (video)". www.parliamentlive.tv. Retrieved 2015-10-12.
  7. ↑ "Scottish Affairs Committee, Blacklisting in Employment (text)". www.publications.parliament.uk. Retrieved 2015-10-12.
  8. ↑ "Big liars: Blacklister shows that site blacklists are alive and killing". Hazards Magazine. October–December 2012. Retrieved 14 October 2013.
  9. 1 2 3 Morris, Nigel (7 August 2012). "Thousands of workers 'blacklisted' over political views". The Independent. Retrieved 5 May 2013.
  10. ↑ "Scottish Affairs Committee takes evidence on blacklisting from Ian Kerr". www.parliament.uk. Retrieved 7 September 2015.
  11. 1 2 "Thousands of UK Workers 'Blacklisted' Over Political Views". Common Dreams. 7 August 2012. Retrieved 7 September 2015.
  12. ↑ "Firm 'sold workers' secret data'". BBC News Channel. 6 March 2009. Retrieved 14 October 2013.
  13. 1 2 3 4 5 "Blacklisting in Employment: Interim Report (Annex A—Examples from the blacklist)". Scottish Affairs Committee. 16 April 2013. Retrieved 14 October 2013.
  14. 1 2 3 Boffey, Daniel (2 December 2012). "Crossrail project dragged into blacklist scandal". The Guardian. Retrieved 5 May 2013.
  15. 1 2 3 4 Smith, Dave; Chamberlain, Paul (27 February 2015). "On the blacklist: how did the UK's top building firms get secret information on their workers?". The Guardian. Retrieved 7 September 2015.
  16. ↑ Bell, Matthew (25 October 2012). "Damning ICO misses the point on blacklisting". Construction News. Retrieved 8 September 2015.
  17. ↑ "240 Women On Construction Blacklist (18 February 2013)". GMB. GMB. Retrieved 7 September 2015.
  18. 1 2 "Scottish Affairs Committee - Ninth Report Blacklisting in Employment: Interim Report". www.parliament.uk. Retrieved 7 September 2015.
  19. ↑ "The Consulting Association". Information Commissioner's Office. Retrieved 5 May 2013.
  20. ↑ Blacklisting in employment: Written evidence submitted by Carillion, September 2012. Retrieved: 7 September 2015.
  21. ↑ Supplementary submission from Carillion plc to the House of Commons Scottish Affairs Committee - Blacklisting in Employment - March 2013. Retrieved: 7 September 2015.
  22. ↑ "Site Worker Online: NRL Continue the Blacklist?". siteworker.blogspot.co.uk. Retrieved 2015-10-26.
  23. ↑ "Blacklisted – the secret war against trade unionists". socialistunity.com. Retrieved 2015-10-10.
  24. ↑ "More blacklist evidence in Manchester". www.labournet.net. Retrieved 2015-10-10.
  25. 1 2 3 4 5 6 7 Smith, Dave; Chamberlain, Phil (2015). Blacklisted The Secret War between Big Business and Union Activists. New Internationalist. ISBN 978-0745333984.
  26. ↑ "Subverting the subversives". BBC. 2002-10-23. Retrieved 2015-10-27.
  27. ↑ Taylor, Matthew (21 February 2013). "Met police launch inquiry into construction worker blacklisting". The Guardian. Retrieved 5 May 2013.
  28. ↑ Boffey, Daniel (12 October 2013). "Police colluded in secret plan to blacklist 3,200 building workers". The Guardian. Retrieved 13 October 2013.
  29. ↑ L, Conrad. "Conrad Landin: Blacklisting and Undercover Policing". LRB blog. Retrieved 2015-10-24.
  30. ↑ Chamberlain, Phil (28 June 2008). "Enemy at the gates". The Guardian. Retrieved 7 September 2015.
  31. 1 2 3 "Construction blacklist". Information Commissioner's Office. ICO. Retrieved 7 September 2015.
  32. ↑ Fitzpatrick, Tom (2012) "Sir Robert McAlpine faces blacklisting High Court claim, Construction News, 30 July 2012. Retrieved: 7 September 2015.
  33. ↑ Chamberlain, Phil (13 December 2012). "Witness dies during union 'blacklist' inquiry". The Independent. Retrieved 7 September 2015.
  34. 1 2 3 "McAlpine admits extensive use of blacklist". The Construction Index. 23 January 2013. Retrieved 21 September 2015.
  35. ↑ Hurst, Will; Hayman, Allister (22 January 2013). "McAlpine admits Olympic stadium blacklist checks". Building. Retrieved 7 September 2015. (Registration may be required).
  36. 1 2 "Scottish Affairs - Seventh Report Blacklisting in Employment: Final Report". www.parliament.uk. Scottish Affairs Committee. Retrieved 7 September 2015.
  37. 1 2 "Construction blacklist compensation scheme opens". BBC News: Business. BBC. 4 July 2014. Retrieved 7 September 2015.
  38. ↑ Evans, Rob (10 October 2013). "Construction firms to compensate unlawfully blacklisted workers". The Guardian. Retrieved 13 October 2013.
  39. ↑ Fitzpatrick, Tom (10 July 2014). "Contractors to face major new blacklisting case". Construction News. Retrieved 21 January 2016.
  40. ↑ "Case Management Conference in the High Court". Guney, Clark & Ryan. GCR. Retrieved 8 September 2015.
  41. ↑ "Blacklisting companies admit liability". The Construction Index. 9 October 2015. Retrieved 9 October 2015.
  42. ↑ Prior, Grant (18 January 2016). "Contractors increase payouts to blacklist victims". Construction Enquirer. Retrieved 18 January 2016.
  43. ↑ Morby, Aaron (25 January 2016). "High Court orders contractors to release blacklist data". Construction Enquirer. Retrieved 25 January 2016.
  44. ↑ "High Court orders construction firms to release blacklisting information". Unite. 22 January 2016. Retrieved 23 January 2016.
  45. ↑ "Blacklist victims finally start to see compensation". The Construction Index. 11 February 2016. Retrieved 12 February 2016.
  46. ↑ Prior, Grant (13 April 2016). "Blacklist contractors pay out "another £15-20m"". Construction Enquirer. Retrieved 13 April 2016.
  47. ↑ "Union threatens to make life difficult for McAlpine over Cullum's court absence". Construction Index. 13 April 2016. Retrieved 13 April 2016.
  48. ↑ Undercover1. "Blacklisting the blacklisters: the evidence (subscribers, key players, finances, etc)". UndercoverInfo. Retrieved 2016-04-13.
  49. 1 2 Prior, Grant (29 April 2016). "Contractors "draw a line" under blacklist scandal". Construction Enquirer. Retrieved 3 May 2016.
  50. 1 2 "Contractors settle blacklisting litigation". The Construction Index. 29 April 2016. Retrieved 3 May 2016.
  51. ↑ Prior, Grant (5 May 2016). "Blacklist trial pushed back as new evidence emerges". Construction Enquirer. Retrieved 5 May 2016.
  52. ↑ Prior, Grant (9 May 2015). "Blacklist contractors make another £4m payout". Construction Enquirer. Retrieved 9 May 2016.
  53. 1 2 "Companies settle final blacklisting action". The Construction Index. 9 May 2016. Retrieved 9 May 2016.
  54. ↑ Evans, Rob (11 May 2016). "Construction firms apologise in court over blacklist". The Guardian.
  55. ↑ Jones, Alan (9 May 2016). "Blacklisted construction workers to get compensation". The Independent. Retrieved 9 May 2016.
  56. ↑ Morby, Aaron (10 May 2016). "Eight contractors to payout £75m over blacklisting". Construction Enquirer. Retrieved 10 May 2016.
  57. ↑ "Half-year financial report for the six months ended 30 June 2016" (PDF). London Stock Exchange. Retrieved 24 August 2016.
  58. ↑ Boffey, Daniel (15 May 2016). "Construction bosses 'tried to hide evidence of their blacklist'". The Observer. Retrieved 16 May 2016.
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