Held at: London South. Monday 5 November - Thursday 15 November 2001.
DECISION The unanimous decision of the Tribunal is that the Applicant was victimized contrary to Sections 44 & 47A and unfairly constructively dismissed contrary to Sections 100 and 103A Employment Rights Act 1996.
By an Originating Application presented at the Tribunal on 24th March 2000 the Applicant complained that he had been victimised for carrying out Health and Safety duties, that he had been victimised for making a Public Interest Disclosure and that he had been unfairly constructively dismissed. A claim was later added that the dismissal was contrary to Sections 100 and 103A of the Employment Rights Act 1996.
The Respondent by Its Notice of Appearance deny that they victimised the Applicant and deny that they were in breach of a fundamental term of the Applicant's contract of employment entitling him to termlnate the same and to claim unfair constructive dismissal.
The Tribunal heard evidence for the Applicant on his own behalf and from Mr C J Attard. For the Respondent the Tribunal heard evidence from Mr G Walker the Applicant's Trade Union Representatlve, Mr Higham-Gray, Mr C Edmunds, Mr K Skilton, Mr S Gollop. and Mr J Thompson.
The Tribunal had before it numerous documents in an agreed bundle which ran to over 1200 pages contained in three lever arch flies. As the hearing progressed various additional documents were produced by the Respondent some of which were added to the original bundle and included within the 1200 pages. Others were kept separate, those were exhibits R1A to R10, records of various disciplinary proceedings/employee absentee records of named employees. R11 comprIsed sundry documents Including various service delivery documents.
Due to the volume of documentation the Tribunal, once they had clarified the issues with the representatives, used the first day as a reading day concentrating their reading on those documents especially identified by both Counsel.
The Tribunal had the benefit of a chronology provided by the Applicant A1.
The Tribunal gave leave to amend the Originating Application: leave was given after final submissions. The Respondent did not oppose the request for leave to amend. The Respondent reserved its positlon on costs. The amendment is the addition to paragraph 18 of the Originating Application of:
"For the avoidance of doubt this complaint of constructive dismissal is advanced on the basis that the reason for the dismissal was contrary to Section 100 of the Employment Rights Act 1996 and alternatively Section 103A of the Employment Rights Act 1996 - this is without prejudice to the Respondents obligation to demonstrate the reason for dismissal".
The facts found by the Tribunal are as follows:
The Applicant commenced work with the Respondent's predecessor British Railways in June 1974. He became a train driver in 1977, he continued employment in that position throughout his career. The Applicant became an employee of the Respondent in or around 1996 following privatisatlon and after various changes within the train operating companies.
The Applicant has been an Aslef member throughout his career.
In 1992 the Applicant became a staff representative at Charing Cross - he sat on the local departmental Committee. The Applicant was responsible for health and safety issues and from the end of 1992/beginning of 1993 was appointed a Health and Safety Representative.
Health and Safety Representatives are appointed pursuant to the Health & Safety Act 1974; as a representative the Applicant attended training courses concerned with Health and Safety issues. These courses were run by the Union and by the Respondent.
The Applicant carried out his functions as a Health and Safety representative under the Safety Representatives Regulations 1977 as amended by the Management of Health & Safety at Work Regulations 1992. Those Regulations which it is not necessary in this decision to set out in detail, set out and define the various functions of safety representatives.
The representative duties are set out in Regulation 4 of the 1977 Regulations. Regulation 4A provides that it is the employer's duty to consult with and to provIde facilities and assistance to safety
representatives to enable them properly to carry out their responsibilities. Regulation 5 provides for the right of the Health and Safety representative to carry out inspections in the work place. Regulation 6 provides that the employer shall make available such facilities and assistance as a safety representative may reasonably require for carrying
inspections following notifiable accidents, occurrences and diseases and Regulation 7 provides that the employer should make available to safety representatives information wlthin the employers' knowledge necessary to enable the Health and Safety representative to fulfil their function by the provision of facilities for the inspection of documents and for the provision of information.
The Regulations emphasise that provision must be made by the employer for the Health and Safety Representative to be able to take time off to carry out his duties, such time off must be during working hours and must be with pay.
The Applicant took his responsibilities as a Health & Safety Representative very seriously and since being appointed to such a position he has raised many Health and Safety issues which have
caused him concern with the management of the Respondent and with others.
In 1996-'97 the Applicant raised concerns about the state of a walkway at the Dartford upsidings, in his opinion they were dangerous especially when wet. He raised the matter a number of times, as did other drivers. The ownership of the walkway was with British RaiI and it took many months of complaining before the Respondents reacted. The ApplIcant had submitted three reports, the last one in January 1998. On receipt of the last report the London Bridge Drivers Standards Manager, Mr Stephens, called the Applicant and gave the Applicant an assurance that the problems would be remedied. They were not. During the meeting between the Applicant and Mr Stephen, Mr Stephen threatened to take away the Applicant's licence to drive trains. By April 28th 1998 still no work had been done. The Applicant submitted a further incident report following an accident when the Applicant slipped narrowly missing the live rail.
In March 1997 the Applicant reported to the train crew manager at Grove Park a potentially dangerous situation concerning a slippery surface at the end of a platform at Slade Green. The Applicant received no response to hls report of 19th March requests for meetings were never dealt with. In December 1997 three drivers slipped on that slope and were injured. The problem was eventually rectified towards the end of 1998 when strips of timber were attached to the surface of the slope to give more grip.
On 17th March 1997 the Applicant raised a written complaint with the Train Crew Manager at Grove Park concerning the dangerous condition of the chairs in the Charing Cross staff accommodation (similar dangerous situations existed at Grove Park and Victoria). The chairs had been provided for staff to use when on rest breaks they were not substantial, the metal legs would often bend and the backs would snap
off. The Applicant was concerned that staff could suffer serious injuries because of the inadequacy of the chairs and some did suffer injuries from using the chairs. The Applicant submitted reports about the condition of the chairs, the first report had been sent before any injuries had been suffered, the second after the first injury and before the second. The Applicant's reports were ignored. The Applicant personally moved the chairs out of the staff accommodation and only then and some considerable time later were they replaced.
The Applicant at the request of a driver raised with the Respondent the question of a potentially dangerous tunnel between Hildenborough and Sevenoaks. A tunnel that suffered from water leaking through the roof. The Applicant raised the problem with an Area Train Crew Manager at a meeting. The Applicant was told that as the responsibility for the tunnel was that of Rail Track it was not for the Area Train Crew manager to
pursue. The manager to whom the Applicant complained was not prepared to raise the matter with Rail Track informing the Applicant that, it was a matter for Rail Track and Rail Track had their own procedures to check it. Minutes of that meeting between the Applicant and the Train Crew Manager (where other matters were also discussed) omitted any
reference to the discusslon about the unsafe tunnel. The Applicant then prepared his own minutes of the meeting which included reference to the discussions about the unsafe tunnel and posted them on the Health and Safety Notice board at Charing Cross station. Subsequently a train was damaged when parts of the roof paneling in the tunnel collapsed onto it. This was yet another incident where the Applicant had been concerned over the safety of the rail system in which he and those who he was representing were operating notwithstanding his drawing management's
attention to serious dangers his concerns were not properly addressed by the Respondent no attempts were made to remove the dangers.
The Applicant also raised concerns over the lack of any suitable rest accommodation for staff who wished to be in a non-smoking area during their rest period. There was it appears either no such smoke free accommodation available or the "no smoking" policy which should have been in place, was not or if there was such a policy then it was not being adhered to and or enforced by the managers. On 4th April 1996 the Applicant produced a nine page report into smoking in the work place (page 386) the report highlighted fellow members of staff concerns, highlighted potential breaches by the Respondent Of Regulation 25 of the Workplace (Health Safety and Welfare) Regulations 1992. It appears that as a result of the Applicant's report and complaints the situation is presently slightly better, but during 1996/1997 and early in 1998 no manager was able to guarantee a smoke free area in which staff could take their rest break, and where they would not be forced to have their breaks outside on a platform bench. The Applicant had himself on occasions gone "off duty" because of the affects on him, a non smoker, of environmental tobacco smoke being inhaled whilst on his personal rest break and particularly at times when he wished to eat during the break. The Applicant found the effects of tobacco smoke unacceptable when eating and it caused him nausea dizziness and headaches. Mr Skilton who had been the Applicant's Manager since January 1999 recorded in a note, copy of which we see at R1 (page 866) dated 24th June 1999, to the effect that Mr Skilton had observed the Applicant in a rest room talking to two Safety Representative colleagues; who were both smoking. It was recorded that the Applicant made no adverse comments about the smoking situation at that time. The note was then placed on the Appllcant's personnel file. The Applicant had been discussing matters with two Health & Safety Representative colleagues before going into a full meeting of the joint safety Committee. The Applicant was not aware
of the fact a note had been made nor that it had been placed on his file. The Applicant had not been eating whilst his colleagues had been smoking.
The Applicant took up on behalf of drivers the problem of heat gain in networker cabs. There had been no consultation with drivers and/or their Health & Safety Representatives about the design of the cabs. The result was that with plate glass windows during summer the temperature in the cab would rise to unacceptable levels. In a report dated 10th August 1997 the Applicant complained that a temperature of 43 degrees centigrade had been recorded in a drivers cab. The ApplIcant himself recorded 36 degrees in his own cab on that same day. This situation of heat gain created a dangerous working environment for the driver and a potentially dangerous situation for passengers as levels of drivers concentration would be put at risk. The driver' units did not have air conditioning, they should have. There was no response to the Applicant's requests to management. The Applicant received numerous complaints from drivers. The Applicant later reported the problem direct to Her Majesty's Railways Inspectorate (HMRI), The question of the need for air conditioning in the cab was first raised by the Applicant and others in August 1997 but it was not until summer 2000 that full air conditioning was in place. If air conditioning was not working the train was taken out of service. The Applicant was able to achieve the implementation of many health and safety requirements adopting this course of complaining direct. This exercise convinced the Applicant that
if he wanted anything done on health and safety matters it would only be achieved if the approach was to the HMRI who would than raise the matter with the Respondents. Such an approach appeared to the Applicant to be more effective then continually raising with the matter with the Respondent who failed to deal with the matter either seriously or at all. As a Safety Representative and a driver the Applicant had serious concerns about the length of train driver's hours and their effect on health of drivers and safety within the railway industry. The Applicant wrote an
article for publication in the Aslef Journal in October 1997, (which was never published by the union). The Applicant placed that article on the Health and Safety notice board at Charing Cross for information for his members to appraise and assess. The Applicant had submitted reports to HMRI of 13th May 1997, 29th May 1997, 28th October 1997 and had met with two inspectors on 23th May 1997 concerning drivers hours and safety impfications.
An associated issue closely linked to drivers hours was the question of inadequate rest periods, heat gain in the driver's cab because of the absence of an air conditioning system, incidents of signals past at danger (SPADS) and management's attitude to those matters.