123.Under sections 137 and 138 of the 1992 Act, refusal of employment or (in the case of employment agencies) refusal of service on grounds of trade union membership is unlawful. In the past, organisations have compiled and disseminated blacklists of supposed trade union activists. People on such lists could have difficulty finding work. Inclusion could be defamatory and unjustified but it was often impossible in practice to obtain a remedy. Although there is no evidence that blacklisting is widespread, the practice of blacklisting in the UK has been repeatedly criticised by the International Labour Organisation and in Fairness at Work the Government proposed to prohibit blacklisting of trade union members.
124.Section 3(1) gives the Secretary of State the power to make regulations, subject to affirmative resolution (under section 42), to prohibit the compilation of lists containing information about individuals’ trade union membership or activities with a view to their being used by employers or employment agencies for the purposes of discrimination in relation to recruitment or in relation to the treatment of workers already employed. Subsection (2) provides that the prohibition may extend to the use, sale or supply of such lists. Subsection (3) sets out particular provisions which may be included in Regulations made under subsection (1). They include provision:
	conferring jurisdiction on employment tribunals and the Employment Appeal Tribunal;
	empowering the courts and tribunals to grant and enforce specified remedies;
	for awarding compensation to individuals included on blacklists;
	relating to cases where an employee is dismissed or selected for dismissal because he is included on a blacklist;
	permitting trade unions to bring proceedings on behalf of their members;
	creating criminal offences, which may in specific circumstances extend to another person, for example to an accomplice or agent of the person who commits the offence, or to their employee or employer; and
	specifying obligations or offences which will not apply in specified circumstances.
The regulations may also include supplemental, incidental, consequential and transitional provisions, including provision amending Acts of Parliament, and may make different provisions in differing cases and circumstances. The Government intends to consult on draft regulations before they are made.
125.Subsection (4) limits the penalties for criminal offences which might be created by regulations made under subsection 3. Subsection (4)(a) provides that offences may not be punishable by imprisonment. Subsections (4)(b)and (c) set out the maximum fines that can be imposed by the courts. Such fines may not exceed level 5 on the standard scale (£5,000) for an offence that is triable only summarily, or the statutory maximum for a summary conviction for a case triable either way. The penalties are based on analogous criminal sanctions in the Data Protection Act 1998.
126.Subsection (5) is interpretative. It provides a wide definition for the type of list which can be prohibited by regulation. In particular, it is designed to cover information that may be stored and circulated electronically, and to cope with the future development of information technologies. It also provides that the term “worker” (which appears in subsection (1)(b)) has the wide definition given in section 13 of the Act, and so includes agency workers, homeworkers, persons in Crown employment and Parliamentary staff as well as those included in the definition of “worker” in section 230(3) of the 1996 Act.
127.Subsection (6) provides that expressions used in section 3 (except for “worker” and “list”) have the same meanings as in the 1992 Act.
Commentary on Sections Trade unions Section 3 : Blacklists