Construction blacklisting: ICO under scrutiny

Construction blacklisting: ICO under scrutiny

Published:

Author: Pamela Morris

The Information Commissioner's handling of the blacklisting of construction workers scandal is under scrutiny in Parliament.

Background

Over three years ago the Information Commissioners Office (ICO) investigated and exposed the blacklisting of over 3,000 construction workers who had been suspected of being involved in trade union activities. As a result of the investigation the Government introduced the Employment Relations Act 1999 (Blacklists) Regulations 2010.

Last year, Liberty asked the ICO to reopen the case following a report published by the trade union, the GMB, to establish the extent to which each company was involved.

There was discussion that if the ICO took this step the consequences could be far more serious for the companies involved than in the first investigation because the ICO now has greater powers of enforcement, including imposing monetary penalties of up to £500,000.

However, the ICO subsequently said that it saw "no grounds to justify reopening its investigation". In August 2012, David Smith, the Deputy Information Commissioner, made it clear that the the ICO had exercised fully the powers that it had at its disposal at that time. Whilst acknowledging that the ICO now has increased powers he said that the monetary penalties "can only be issued where a breach of the Data Protection Act has taken place after April 2010. As the ICO has not received any reliable evidence that unlawful processing of personal data continued after April 2010 the stronger penalties do not apply".

Out of date data

The ICO also rejected the GMB's calls for it to make contact with those on the blacklist: the data included in the list is said to have been old and, in many cases, incomplete: certainly the ICO did not want to be in the position of sending sensitive personal data to the wrong addresses! Nevertheless GMB members were identified from the list and contacted by the GMB after the ICO allowed the GMB's legal team to view the data.

Latest developments

However, the issue is now to be raised in a House of Commons debate, as a call is to be made for a full inquiry into the matter to establish claims of blacklisting of workers involved in both the Olympics and the Crossrail project. The key point is expected to be that many of those concerned are still no longer aware that they are on the list.

It is expected that MP's will agree that this should be addressed but it remains to be seen what actions will be taken as a result of the debate and whether a full inquiry will commence.

Comment

It will be interesting to see how the ICO will react to such a potential scrutiny of its regulation and enforcement actions.

All employers should be aware that data held about its employees must be processed in accordance with the Data Protection Act 1998: information about trade union membership is sensitive personal data and so subject to even greater protections than other personal data. Employers should never make recruitment decisions on the basis of an applicant's trade union membership.

Following the European Commission's review of European data protection legislation the ICO's powers are likely to grow further meaning that compliance with data protection law across both the UK and Europe will become a key issue for organisations.

Sources:

BBC News: 'Call for construction industry 'blacklist' inquiry'

ICO blog: 'Prosecution of construction blacklist used strongest powers we had'