High Court orders construction firms to search for documents on secretive blacklisting activities inside the companies

Following a hearing in the High Court on 16 July 2015, the application for disclosure of documents on behalf of blacklisted workers, including 126 GMB members, was successful.

The claims for compensation were served by law firm Leigh Day for GMB members on 27th November 2013. GMB’s claims were joined with a further 449 claims by other unions and parties at a High Court Hearing in July 2014. There was a directions hearing on all 571 cases beginning on 17th December 2014, 13th February, 14th May and 14 July 2015.

Blacklisting came to light when in 2009 the ICO seized a Consulting Association database of 3,213 construction workers and environmental activists used by 44 companies to vet new recruits and keep out of employment trade union and health and safety activists.

In the High Court the majority of the companies argued that the disclosure exercise sought by the claimants would cost millions of pounds, and was impractical. Importantly, these companies also wanted to limit the number of people whose email accounts would be searched, and not to search other sources of electronic documents, such as desktop computers, laptops and mobile phones.

The court (the Honourable Mr Justice Supperstone and Master Leslie) rejected these arguments, saying they were ‘unimpressed’ by the evidence the companies put forward.

The court decided five key points in the claimants’ favour:

  • searches would include desktop and laptop computers, and not just emails;
  • searches should include mobile phones and blackberrys for the period of time in 2009 around the ICO raid of the Consulting Association;
  • documents should be individually reviewed (for certain individuals and time periods), rather than just using electronic ‘key word’ searches; and,
  • searches should be conducted for PAs and assistants to the Chairmen of the Consulting Association (16 in total), and not just the 8 Chairman themselves.
  • 26 key named individuals will have to supply detailed statements explaining their involvement with Consulting Association.

The companies are to tell the blacklisted workers about the results of these searches by 30 October 2015, in preparation for the trial of the lead cases in May 2016.

The companies covered by the disclosure ruling are as follows:

  • Carillion
  • Balfour Beatty
  • Costain
  • Kier
  • Laing O’Rourke
  • Skanska
  • Sir Robert McAlpine
  • Vinci
  • Amec
  • BAM
  • Cleveland Bridge
  • Lend Lease

Michael Newman, solicitor at Leigh Day, said:

“Blacklisting companies need to know that they cannot hide behind their hundreds of thousands of emails and archiving boxes, claiming that they cannot perform detailed searches about their involvement in the Consulting Association.

“It is farcical to suggest that searching electronic documents using terms such as ‘blacklisting’ was going to be very productive, for an organisation such as the Consulting Association that thrived on secrecy and clandestine communications.

“The court’s order means that the claimants will now have the results of all these searches by 30th October in good time for the trial in 2016.”

Maria Ludkin, GMB National Officer for legal and corporate affairs, said:

“At last the court has given a definitive ruling that key individuals, who up to now have hidden inside the construction companies, will have to explain in detail how the blacklist was serviced and operated by them. They will have to provide detailed search evidence showing how blacklisting information was used inside the companies either when it was submitted to or obtained from the Consulting Association.

“Further, the order for extensive searches for communications around the time of the ICO raid will at last shine a light on the level of conspiracy between the defendant companies as they tried to cover up their unlawful activities.”