Toxic Blacklist

The BBC has reported that Employers have begun a blacklist of “bad” employees who have been dismissed or those who have left before disciplinary proceedings can be commenced. To critics it sounds like a scenario from some Orwellian nightmare. An online database of workers accused of theft and dishonesty, regardless of whether they have been convicted of any crime, which bosses can access when vetting potential employees. But this is no dystopian fantasy. Later this month, the National Staff Dismissal Register (NSDR) is expected to go live.

Harrods and Selfridges are among two of Britain's best known high street businesses to have signed up to a controversial database for blacklisted staff that could affect the careers of three million workers. Under the privately run scheme, the names and personal details of former employees whose behaviour has offended the companies will be placed on the newly created National Staff Dismissal Register.

While some employees whose crimes are prosecuted in court will have a chance to defend themselves, other staff may never know their behaviour has found its way on to the register or that they have become a blacklisted worker. Workers sacked for these offences will be included on the register, regardless of whether police had enough evidence to convict them. Also on the list will be employees who resigned before they could face disciplinary proceedings at work. Seven businesses have so far signed up to the register, which went live last month, according to the scheme's organiser, Action Against Business Crime. They include Mothercare and Reed Managed Services.




Politicians and lawyers condemned the database and called on the Government to bring in immediate safeguards to protect employees. The Liberal Democrat home affairs spokesman in the House of Lords, Baroness Sue Miller, said it was "a disgrace that the Government has ignored the rights of employees while private businesses have established a blacklist with no safeguards for the employees put on it".

Baroness Miller added: "A website run for profit is trying to take the place of police, prosecution, judge and jury. There need to be stringent safeguards put in place on this blacklist. "Employees should not be placed on the register until they have been given the opportunity to object. The burden must be on employers to prove an employee's guilt before they are entered on the register."

But Action Against Business Crime says the register will comply with data protection legislation and will hold details of individuals who have been under investigation for acts of dishonesty. "This information is shared with other members of the register who are able to access the national system to search for details of an applicant, ensuring both cost saving through reduction in losses, and a more efficient recruitment process," said Action Against Business Crime.

Selfridges said that any offence that was sent to the register would be properly investigated and that appropriate efforts would be made to notify the former member of staff. A spokeswoman for Harrods, which is owned by Mohamed Al Fayed, said the company had agreed in principle to sign up to the National Staff Dismissal Register. She added: "Our existing internal disciplinary procedures ensure that no person subject to a frivolous or malevolent allegation would find themselves on the register.”We believe that our involvement with the scheme will give extra reassurance to current staff and customers alike."



Well these PR words pale against the proven, documented track record of Mohamed Al Fayed which demonstrates the great danger of the scheme and the damage to employees from this covert Kangaroo Court where no ACAS guidelines need be followed, no employee has a right of representation or appeal and where in Defamation Law malice and an intention to cause harm to the individuals listed can be assumed, for why else have this database other than to stop people being successful in applying for jobs? There is not just the Department of Trade inquiry which found "We are satisfied the image they created between November 1984 and March 1985 of their wealthy Egyptian ancestors was completely bogus." He was later accused by his business rival Tiny Rowland of breaking into a safety deposit box at the store. Without admitting responsibility, Mr Al Fayed settled the dispute with Rowland's wife after his death. Al Fayed had been arrested during the dispute and sued the Metropolitan Police for false arrest in 2002. He lost the case. He has been refused a British Passport by no less than four Home Secretary’s on character grounds, a decision upheld by the Court of Appeal. Mohamed Fayed was also involved in the cash for questions scandal, having offered money for questions in the commons to the Conservative MPs Neil Hamilton and Tim Smith. Both left the government in disgrace. Fayed also revealed that the cabinet minister Jonathan Aitken had stayed for free at the Ritz Hotel in Paris at the same time as a group of Saudi arms dealers leading to Aitken's subsequent unsuccessful libel case and imprisonment for perjury.

His record as an employer and as a reliable witness begs scrutiny and includes:

• The substantial number of out of court settlements by Fayed for sexual harassment by Harrods and Fayair (His executive jet business) employees
• Fayed's recorded quotation that the reason he wanted British citizenship was that he didn't like queuing up with the Pakis at Heathrow
• The number of occasions upon which Harrods employees have successfully obtained a finding of racial discrimination at an employment tribunal
• The resignation of the managing director of Harrods Bank, citing improper practices instructed to him by Fayed, leading to the interest taken in the probity of the arrangements there by the Bank of England, which led to Harrods subcontracting the operation of the bank to a reputable bank
• The opening of a safe deposit box belonging to a customer of Harrods Bank, being a person Fayed was known to have an interest in
• The DTI's conclusion that he lied to the Monopolies and Mergers Commission in its investigation of the take-over of Harrods
• His bribe to a member of parliament to facilitate his getting citizenship
• His subsequent admission of that bribe to embarrass the MP when he failed to deliver it
• His apparent almost daily handling of very large sums of cash which get handed out to people
• His loss of an Employment Tribunal case taken by the former Fulham Manager in Fulham Football Club (1987) Ltd V Jean Tigana. (£3m award against Al Fayed)
• Diana’s Bodyguard Trevor Rees-Jones V Al Fayed (County Court 2000, Breach of Contract).

The main source for much of the above is Tom Bower's book "Fayed", which itself has very detailed sources. Bower is very careful in what he says, and no one has successfully sued Bower for libel, despite frequent threats to do so. So no doubting the quality of the entries on the Toxic Blacklist then!

But Kerry Waters, an employment rights expert at Clarions Solicitors, said that the register was potentially "wide open to abuse, with little detail being provided by the Action Against Business Crime Group as to how (or even whether at all) the register will be policed or monitored." She warned that one "minor blip" on someone's record "could wreak havoc with their career".

There is a dilemma here. When firms detect dishonesty it certainly reflects on the employee but it also reflects on the control systems and oversight in the company. For this reason companies rarely prosecute - it exposes weakness in their systems and inadequate management. It is the first principle of Justice that it should be public and open - If companies feel they have been the victims of fraud and dishonesty they should have the courage of their convictions to prosecute with all that entails, including reputational risk.


Otherwise a blacklist is unethical and guaranteed to lead to successful actions for defamation and breach of Data Protection legislation - it is a poltroonerish way of having your cake and eating it? So this Toxic Blacklist is a clear breach of the rules of natural justice and the Human Rights, can be negated by requests under the Data Protection Act to remove individual subject data and it is a ready made grudge weapon for every inept and incompetent employer who does not follow due process and ACAS guidelines and has grudges against employees including whistleblowers who are protected by statute. Nor is there any possible equity with employees suing employers and a "Bad Employer Database" being created. As an analogy customers sue and get judgements against Banks all the time. Effect on Bank; virtually zero. Bank gets judgement against customer; effect on customer? Catastrophic!

So what is the sound of sharpening wood and laughter you hear in the background? Why it is the lawyers of Britain sharpening their pencils and laughing their heads off that the National Staff Dismissal Register (NSDR) has made proving malice and seeking damages so easy! I predict writs at dawn!