Home > Holden Verses Connex > Decision of the Employment Tribunal Part 2
Mr Laurance Holden
Connex South Eastern
8  (15)There is no legislation which regulates the hours that it is legal for a train driver to work. The Working Time Regulations do not apply. Trains in the Southeast, particularly at rush hour periods, contain many hundreds of passengers on what for drivers are long journeys and in whole or in part taking place through some of the most intensive commuter networks in the country.
(16)Drivers working hours have changed considerably since the Applicant first became a driver with British Rail in 1977. Until 1997 no driver worked more than nine hours a shift but after restructuring took place in 1997 a working package was put together by the Respondent which was approved by Aslef and then passed on a majority vote (of these voting) by ASLEF members. See the "New Deal for Drivers" at page 195. It appears now that individual drivers when voting for the package did not fully understand the shift patterns and were surprised at the working hours that had to be worked when the restructuring took effect.
(17)The Applicant was concerned that the restructuring package infringed the Railway (Safety Critical WorK) Regulations 1994 Regulation 4 of which states that "every employer shall ensure so far as reasonably practicable that no employee of his undertakes any safety critical work for such number of hours as would be liable to cause him to fatigue and could endanger safety and in determining whether he would be so liable regard should be had to the length of time between periods on duty for the purposes of paragraph one the person shall be regarded in undertaking work throughout the period that he is on duty."
(18)The Code of Practice made under those Regulations requires the employer to carry out a suitable and sufficient assessment of the risk of fatigue associated with hours of work. Before increasing existing limits or introducing a material change to existing working time patterns the Regulations require a risk assessment be recorded and account should be taken of the views and experiences of the staff affected either directly or through their Representatives and that adequate arrangements are in place to monitor the safety performance of the staff.
(19)The Applicant raised his concerns with the Managing Director of Connex in a letter dated 28th April 1997 and the Applicant asked for a copy of the risk assessment that had been carried out by Connex and or the Trade Union a document which, the Applicant quite rightly, considered that he was entitled to all. A copy of the Applicant's written request is at page 436, the Respondents response at page 462 dated 23rd July, that response nearly three months later fails adequately to deal with the Applicant's request. The Applicant consistently maintained that the Safety Critical Regulations were broken by the Respondent. The Applicant was concerned that the risk assessment had not been properly carried out and had been based on the previous as opposed to the future shift patterns. The Applicant wanted to receive a copy of the risk assessment to confirm or allay his fears, he requested copies of the assessment not only from the Managing Director but also from local managers on many occasions. Again when the Applicant met in December 1997 with Mr Goff the Production Manager and the Safety Standards Manager Mr O'Neill he again made a request for a copy of the risk assessment his request was refused. It is only during the course of these proceedings and only recently, at that, that a copy has been provided by the Respondent to the Applicant.
(20)At page 1050 and 1051 under the heading of Monitoring Arrangements, we see that it is provided that for a minimum period of twelve months following the introduction of the changes that every investigation into station over runs or SPADS would need to consider whether the changes to the patterns of working time could have contributed to the incident. In addition the assessment recognizes that the changes to working time patterns may have affects on the health of train drivers and collective monitoring of sickness patterns amongst drivers should also be included in the loss control reports that DSMs are asked to complete. DSMs were required to undertake various assessments and for there to be individual monitoring and at paragraph 7.2 of the Risk Assessment page 1051 it reads: "any deficiencies in performance will be closely studied during this period with a view to establishing whether fatigue could have played a part, where increased levels of fatigue are identified, either by the driver or by the DSM. Individual monitoring will be strengthened and the safety performance manager advised so that the matter may be recorded in the loss control report".
(21)The risk assessment provided and envisaged that in advance of the introduction of the changes every driver would be briefed on the importance of advising his or her DSM of any perceived increase in fatigue which he or she may feel which resulted from the changes in working time patterns and that each such reported incident would then be investigated fairly by all DSMs.
(22)It was at a meeting held on 24th June 1996 in a hotel in Tonbridge that the Risk Assessment was finallsed, the mlnutes of the meeting are at page 1056. Annexed to the minutes are a number of appendices and there we find highlighted risks which are specified in the Railway Safety Case. It appears that it was feared that there may have been a greater risk from the new proposals by extending the length of driving time and it is highlighted that this may cause fatigue especially in those drivers who travel a long distance to work before undertaking long rostered shifts and also that working repetitive routes may cause boredom and/or complacency. Having identified the existing control measures, the documentation in the Safety Case record that those measures are not adequate and that additional control measures are required and set out under the various heading are suggestions as to what those various requirements might be including additional rest days leave, monitoring performance and improving route knowledge.
(23)A Risk Assessment dated 23th January 1997 considered the relationship between accidents/incidents and drivers hours of duties and concluded that the data would seem to indicate that there is no significant relationship between the length of drivers turn of duty and the frequency of personal accidents. That investigation of course related to the situation as it had been in the past whereas the assessment itself at Appendix A raises the question as to whether or not the extended length of driving may cause fatigue and recommends that additional control measures are implemented. Those additional measures recommended in the appendix were never implemented and it is clear from Appendix A and the concerns there stated that the concerns there were identical to those being raised by the Applicant. The Applicant was never provided with a copy of the report and his concerns were brushed aside by the Respondent claiming that as there had been a risk assessment there was no need for further investigation. What is clear from Appendix A of the Risk Assessment is that the Applicant's concerns were identical to those concerns raised In terms in the Safety Case even to the extent that there would be the need for there to be careful monitoring of the SPADS reports. This was precisely what the Applicant was asking should be in place. The Applicant got nowhere with his requests.
(24)After the restructuring was in place the Applicant received a number of complaints from other drivers who felt more and more tired. Drivers were not prepared to raise the question of fatigue with their managers and were extremely reluctant to go absent from work notwithstanding their fatigue as had they have done so their absence would have triggered the attendance procedure which then could have led to their dismissal. The result was that with the longer shifts and the inadequacy of rest periods and the fact that these changes were introduced overnight as opposed to a gradual introduction envisaged this caused even greater concern to the Applicant who was fearful that it was the more Ilkely that the drivers would suffer the effects of fatigue with an adverse effect on safety.'

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