The blacklist: what it means for contractors alleged to be involved

Disgruntled construction workers who suffered a financial loss by being named on the construction 'blacklist' look set to be able to sue the contractors who bought information about them.

But the contractors linked by the Information Commissioner to the Consulting Association are likely to escape official sanctions.

The Information Commissioner alleged a total of four breaches of the Act. Only one of those - the Consulting Association's failure to register with the Information Commissioner - is a criminal breach.

The other three all come down to the issue of whether the way in which the information was handled was fair.

Richard Jones, director of data privacy at Clifford Chance, said: "If operating the database was unfair, then either contributing to it or taking data from it would also have been unfair.

"So in principle, I think that is likely to mean an individual who was denied a job would have the option either of suing the person who denied them the job, or the private detective agency, or indeed their former employer who provided the information to the private detective agency, or all three."

Change in law

But those firms alleged to have bought information from the detective agency have also narrowly escaped potential civil fines because a change in the law has not yet come into force.

The Criminal Justice Investigations Act is likely to allow the Information Commissioner to levy fines where there has been a serious breach of legislation that has a material impact on individuals concerned.

The Commissioner is lobbying to have the power to fine up to 10% of a firm's relevant turnover - a similar power to the Office of Fair Trading - but the power is not yet in force.

Paula Barrett, partner and head of data protection practice at Eversheds, said: "This is a useful reminder that while vetting of itself might be perceived as curing one particular data protection compliance issue, they have to be careful not to then by carrying out that vetting place themselves in a situation where they have then breached it for a different reason."