Home > Holden Verses Connex > Decision of the Employment Tribunal Part 3
Mr Laurance Holden
Connex South Eastern
8  (25)The HMRI did its own survey in 1997 see pages 505 and 506. The HMRl's survey report dated November 1997 concluded that there was considerable concern amongst drivers as to how the restructuring package was affecting individuals and concern that it was not working as it was intended. There had been a small number of instances where working hours had been breached and that incidents had occurred probably arising from fatigue which had not been reported. The survey expressed fear amongst drivers as to that the consequences of reporting fatigue and its effects. The survey highlighted that there was a feeling amongst staff and drivers in particular that the Respondent company did not care about the consequences for staff of the longer shift pattern.
(26)At paragraph 5.3 (page 1045) of the Driver Restructuring Assessment it was recorded that a report which eventually led to the Railways Act 1993 and had discussed the possibility that change on working time patterns could lead to fatigue and reached a number of conclusions. The report found that excessive working hours by train drivers may lead to fatigue and compromise safety, that without specific control it would be difficult to ensure that drivers were not pressed or permitted to work excessive hours and that regulations in similar industries would make it difficult not to apply Regulations to the hours of train drivers and that any indicative limits should be broadly acceptable to the industry.
(27)An independent firm Circadian Technology had carried out surveys for other Train Operating Companies' drivers towards the end of 1997. It appears that the firm undertook a preliminary study for the Respondent but were not commissioned to do a full report/survey. The Respondent was not prepared to pay for a full report as the Respondent considered Circadian to be "expensive". Although it is not entirely clear it appears to be the case that there was no written document recording the results of the preliminary study.
(28)When a signal is passed at danger the driver is required to complete a report of the incident. A more detailed report would then also be prepared by the driver and the Driver Standards Manager would also report his own conclusions and the complete report would then be submitted to Safety Standards at the Respondents Head Office. The Applicant as a Health & Safety Representative would only see the overall submission by the DSM as set out in the Loss Control report. The Safety Representative would not be allowed to see the whole report. Even then what little was copied to the Health and Safety Rep was not sent on a regular basis, only after the Applicant requested them. The Applicant considered that he should have received a full copy of all incident reports including a copy of the explanatory report by the driver.
(29)The Applicant's own investigation into the reports from June 1997 to the end of 1998 in the Metro area revealed that eleven out of twenty incidences where a signal were passed at danger could in the Applicant's opinion be attributed to tiredness or fatigue which the Applicant concluded was likely as a result of restructuring and the increase in driven hours.
(30)The Applicant reported his findings to H M Railway Inspectorate in January 1999.
(31)The shift patterns after restructuring meant that the drivers would work a week of morning starts and then a week of afternoon starts. The number of hours that a driver could be required to work on a shift was eleven, this did not take into account time travelling back to the driver's own depot. The minImum hours for any shift was six in which case the driver would not be entitled to a rest break. Sundays were no longer optional. It was no longer obligatory to take a break between the third and sixth hour.
(32)The Tribunal was provided wIth evidence of some drivers who had worked seventy seven hours over 7 days by working eleven hour Shifts. There was a second restructurIng in March 1999. The maximum length of shift was reduced to ten and a half hours with a shorter aggregate working week. The hours a driver could work in the suburban area was reduced to eight and three quarters hours. The taking of rest periods was prohibited during the first and last hour of the shift. Even with the changes drivers could still be on duty for nine hours with only a twenty minute break.
(33)The Applicant was of the opinion that the restructuring had led to an increase in the number of drivers reporting sick as they were becoming fatigued after working long hours with intensive driving. If a driver wanted to be relieved from his duties because of fatigue he would need to report to a manager and explain why he was tired and would then have to prepare a report. The report would go on his personnel file. Drivers were loathe to do this with the result that a problem often went unreported. As a Health & Safety Representative the Applicant had been approached by many drivers who complained to him that they were tired and were fearful of making errors of judgement.
(34)Thirty out of the seventy-elght drivers with whom the Applicant spoke to about these matters complained that stress at work because of long hours was also affecting their home life. The Applicant himself because of the longer hours suffered from fatigue and lack of sleep.
(35)The Respondent operates a Managing for Attendance Scheme. There are five stages to that scheme. There was little discretion given to Supervisors and Managers, the procedures automatically "kick in" after only two days absence in any thirteen week period. The consequences of such strict procedures is that many drivers who although feeling unwell and who were not up to the required health standard were too concerned to go sick or to report fatigue and would come on duty when they should not have done. As had they have reported sick this may have prejudiced their continued employment. The result being that drivers tried to cope with theIr own tiredness and as a consequence their stress levels actually increased.
(36)The Applicant himself historically had an excellent attendance record with minimal sickness, yet in 1997 he had seventeen days off sick. The reasons for the majority of the Applicant's absences ware "fatigue and tlredness."
(37)On 27th October 1998 the Applicant had a Stage 3 meeting under the Management for Attendance Procedure with his local Manager, Mr Gollop, the Applicant had started work at 3.30 am that morning, the meeting with Mr Gollop was at 1.00 pm. The Applicant was put on a final warning. The effect of this was that if he had any time off at all within the then next twelve month period he could have been sacked. The effect of that warning on the Applicant was the Applicant dare not take any tlme off even if he should have had time off because of fatigue with the result that the Applicant, and it was the same for other drivers, would come to work when he was not properly fit to drive the trains because he had no alternative. He and they were fearful of losing their jobs.
(38)In the Applicant's case an incident occurred on 9th November 1998 at Albany Park whilst the Applicant was on his last trip to Dartford at the end of a long duty. Unfortunately the Applicant had braked fractionally too late and the train stopped with one carriage past the platform. The incident was reported to the Driver's Standard Manager at London Bridge who seemed uninterested when the Applicant complained of the long hours of work and that he had been exhausted from working so long which had affected his judgement.
(39)The Applicant had visited his doctor on 8th July 1998 complaining that he felt tired and found it hard to concentrate.
(40)If a driver worked on a Bank Holiday he became entitled to an extra days leave. Yet in reality it was difficult for staff to take the time off as they were needed for the Respondent was short staffed and requests for leave were often declined. Notwithstanding the difficulties in being able to take their leave entitlement, staff were reminded that if accrued holidays were not used up by the end of the year they would be forfeited. The Applicant raised these issues with his manager, the problem was not resolved .
(41)On 31st December 1996 the Applicant applied to move to the Tonbrldge depot. A transfer would reduce the amount of travelling he would have to do and also reduce his hours and the volume of intensive work he would have to do.
(42)At the time of applying the Applicant was seventh in line for a transfer. The Respondents had resolved that the Applicant's transfer would take effect in early 2000. Mr Thompson and Mr Skilton both knew of this in the middle of December 1999. They knew that the Applicant's request for a transfer which the Applicant had wanted for some years had at last been granted. This was known sometime before the Applicant had handed in his notice. The Applicant was never informed, although all of course local management were aware that the Applicant had been waiting for that transfer since December 1996 and were well aware also of the tremendous benefit such a transfer would have been to the Applicant it would have substantially reduced his traveling time and his duties would have been less pressurised than when based at Charing Cross where on occasions he had to book on by 4.30 am. Why was he never told we ask.
(43)The Applicant remained on a Stage 3 warning under the Managing for Attendance Procedures for some fifteen months from 27th October 1998 to January 2000. The Applicant had one day off sufferlng from migraine on 21st September 1999 as the medicines taken were extremely potent and as a result he was not able to drive a train. The Applicant was upset that having to take a day off when genuinely sick caused him such concern and resulted in increasing his stress levels which in turn aggravated his migraine. Because of this absence the Applicant received a reminder that he was on a final warning. The Managing for Attendance Procedure requires in the event of an improvement in attendance a congratulatory letter be sent to the individual employee. Furthermore the procedure would normally expect after a Stage 3 interview for the employee to be referred to an Occupational Health specialist. In the case of the Applicant neither of these events applied. Also the Trade Union were never notified that the Applicant a Health and Safety Representative was being subjected to the attendance procedures. The Union should have been so advised. The Applicant was disciplined in 1999 and was given a final warning under the procedure and he was told that he would remain on Stage 3.

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