Mr J MacNaughton v Calmac Ferries Ltd and others: 4113588/2021
| Jurisdiction | England & Wales |
| Judgment Date | 22 May 2023 |
| Citation | 4113588/2021 |
| Date | 22 May 2023 |
| Court | Employment Tribunal |
| Published date | 05 June 2023 |
| Subject Matter | Blacklisting Regulations |
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No: 4113588/2021
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Held in Glasgow on 6, 7, 8, 9 and 20, 21, 22, 23 and 27 March 2023
Employment Judge L Wiseman
Members L Brown and A Grant
Mr James MacNaughton Claimant
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Represented by:
Mr T Merck -
Advocate
[Instructed by:
Ms S Shiels –
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Solicitor
Calmac Ferries Ltd First Respondent
Represented by:
Ms S Mackie -
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Solicitor
Caledonian MacBrayne Crewing (Guernsey) Ltd Second Respondent
Represented by:
Ms S Mackie -
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Solicitor
David MacBrayne Ltd Third Respondent
Represented by:
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Ms S Mackie -
Solicitor
David MacBrayne HR (UK) Ltd Fourth Respondent
Represented by:
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Ms S Mackie -
Solicitor
JUDGMENT OF THE EMPLOYMENT TRIBUNAL
The Tribunal decided to dismiss the claim.
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4113588/2021 Page 2
REASONS
1. The claimant presented a claim to the Employment Tribunal on the 2
December 2021 in which he brought claims under the Employment Relations
Act 1999 (Blacklists) Regulations 2010 and section 146 of the Trade Union
and Labour Relations Consolidation Act 1992. The claimant successfully
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applied for employment with the respondent in 2014. This employment was
terminated on the day it started because the claimant did not have the correct
certification for the vessel. The claimant will say that he was subsequently
subjected to a detriment for using the services of a trade union, and
blacklisted. The claimant supported his claim by pointing to the fact he had
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subsequently applied for 60 plus positions with the respondent and had only
been successful in one application, which was withdrawn before he started
work.
2. The respondents entered a Response to the claim in which they denied the
existence of a blacklist and denied the claimant had been subjected to a
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detriment for using the services of a trade union. The respondent asserted the
claimant’s employment in 2014 had been terminated because he did not have
the correct certification for the vessel and the offer of employment in 2017 had
been withdrawn because the claimant had failed to demonstrate behaviour
consistent with the respondent’s values following a conviction for Assault to
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Injury.
Introduction
3. The claimant, in 2014, was a member of the trade union Prospect. The
claimant commenced employment with the respondent but this employment
was immediately terminated because the claimant did not have the correct
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certification for the vessel. The claimant made use of the services of his trade
union to successfully seek a compensatory payment for the loss of
employment. The claimant asserts that because of making use of the services
of his trade union he was branded a trouble-maker and blacklisted by the
respondents.
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4113588/2021 Page 3
4. The claimant continued to apply for jobs with the respondents (60 applications
in total) and has been unsuccessful in all but one of those applications. The
claimant was offered employment in 2017 but this was withdrawn following
the respondent learning of a conviction for Assault to Injury.
5. The claimant, through a Subject Access Request in early 2021, recovered
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emails referring to a document entitled “James MacNaughton –
BLACKLIST.doc”.
6. The claimant’s case is that the events of 2014, together with the blacklist
document and the internal correspondence and comments surrounding his
applications, demonstrate the real reason why he has not been successful in
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obtaining employment with the respondents.
7. The case has been subject to case management where it was agreed the list
of 60 applications would be focussed on the 20 applications highlighted on
pages 197 – 204 (that is, applications 1, 2, 4, 10, 21, 22, 26, 29, 30, 36, 28,
44, 49, 51, 54, 55, 56, 58, 59 and 60). In fact, applications 4, 21, 59 and 60
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were withdrawn during the course of the hearing.
8. The claimant’s representative also made clear at the start of the hearing that
the blacklisting claim was brought in terms of Regulations 3 and 9. (The claim
brought in terms of Regulation 6 had been withdrawn following the claims
against two recruitment agencies being withdrawn).
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9. The tribunal and parties agreed at the start of the hearing to separate liability
and remedy. This hearing, accordingly, is restricted to determining liability for
the claims brought by the claimant.
10. The tribunal heard evidence from:
(i) The claimant;
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(ii) The claimant’s wife, Anne MacNaughton;
(iii) Kevin Campbell, Technical Manager (Overhauls)
(iv) Laura Farina, HR Assistant,
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