Home > Holden Verses Connex > Decision of the Employment Tribunal Part 4
Mr Laurance Holden
Connex South Eastern
8  (44)The Applicant was a fully committed Health & Safety Representative and took his responsibilIties seriously. The Applicant found it impossible to sustain any meaningful dialogue with management over safety issues. The Applicant's attempts to ensure that the Respondents consulted with the Health & Safety Representative to the extent required by the legislation bore little fruit. For example on the question of restructuring, another example and a separate issue related to problems at Charing Cross with the new signalling system installed after the decision to extend the length of trains using Charing Cross. Three attempts were needed before the signal system was of an acceptable safety standard, although then not perfect, there had been no consultation with the Health & Safety Representative or drivers. Had there have been consultation then the signalling would have been correct at the first attempt.
(45)A meeting was held in January 1996 concerning inadequacies in the coupling between carriages but it was only after the Applicant had spoken to the Railway Inspectorate that the Respondent who previously decided unilaterally that all doors to the carriages be locked creating a fire hazard, that the Respondent was prepared to hold a meeting at Charing Cross to discuss the position. Slade Green drivers who should have attended were not booked onto the meeting because the requirements of the service did not allow it.
(46)The Applicant sought to have consultation with management on individual SPADS. Local Managers refused to give tne Applicant copies of a blank SPADS report form which is completed by the driver when an incident occurs. Mr Holden was only shown such a form in late 2000 by Mr Skilton but was not given one. A SPAD group meeting was held on a regular basis, Health & Safety Representatives did not attend these meetings, those who did attend had not all had the benefit of health and safety training. The SPAD group findings were not made available to Health and Safety representatives. The Tribunal heard from Mr Walker - Mr Walker had been a member of the SPAD Group - the Tribunal heard his evidence and were unimpressed by Mr Walker both as a Trade Union Representative and a member of the SPADS group.
(47)The Applicant was not given time off with pay or proper facilities to carry out his Health and Safety duties. The Applicant was forced to carry out the majority of his duties in his own time. Apart from the statutory quarterly safety inspection the Respondents did not allow the Applicant time off to carry out his health and safety duties. In Autumn 1996 the Applicant pointed out in his report that he had been promised and awarded a days release for Health and Safety duties but the manager then changed his mind and wIthdrew the day release at the last minute without explanation.
(48)The Applicant's responsibilities as a Health & Safety Representative involved him consulting with his members and taking their views on safety matters, taking up issues raised by them with management, investigating incidents where questions of safety arose, having access to the Respondent's and to the Health & Safety Executive's safety reports and researching and compiling reports on safety for his Union and for the Railway Inspectorate and for local and senior management of the Respondent.
(49)The Regulations recommend that there be one Health & Safety Representative for every thirty-five employees. The Applicant represented some seventy or so drivers. The Applicant had one day off towards the end of 1997 for health and safety reasons. Despite twice asking, in writing, for time off in 1998 the Applicant was not granted any time off. The Applicant was given time off to attend area Safety Committee meetings, these meetings were always scheduled to start two hours before a Network User group so the Safety committee meetings rarely had time to discuss all of the health and safety issues and had to be curtailed so as not to delay the Network User Group Meeting.
(50)The Applicant had never been given a room or office accommodation in which he could carry out his duties and neither was he provided with a desk, a phone or fax from which to carry out his duties. There was no private place to consult wIth his member drivers. During the proceedings, and for the first time, the Respondent pointed out that there were facilities the Applicant could have used at Grove Park. The Applicant had never been notifIed that there were any facilities at Grove Park that he could have used and in any event it was far too long a journey bearing in mind that it was somethlng like half hours walk from the station to the office accommodation.
(51)At a Health & Safety Representatives' meeting in late 1998 the Applicant raised the fact that there appeared to have been an increase in SPAD and safety incidents since the drivers restructuring in June 1997. The Applicant was not the only one who had such concerns. The Applicant wrote to drivers who had been involved in a SPAD to obtain more information and to ascertain the driver's view of the cause of the incident, as extracts from the loss control reports which are filed in the Respondents Health and Safety library at Blackfriars would contain a general description of the incident and the name and depot of the driver concerned but not all of the details. The Applicant received one written response and many verbal responses to his requests.
(52)On 22nd February 1999 the Applicant was interviewed by Mr Thompson the Area Operations Manager who was accompanied by DSM I Reid, the Applicant had no advance warning of the meeting. The applicant was told that a complaint had been made by a drIver to whom he had wrItten that the Applicant should not have been aware of the identity of drivers who were involved in SPADS. Mr Thompson warned the Applicant that in his view writing such a letter could constitute harassment and Mr Thompson warned the Applicant that an employee had been dismissed under the Harassment procedures (that was a case Sexual Harassment although that was not explained) as Mr Thompson was attempting to warn the Applicant off investigating SPAD incidents.
(53)Mr Thompson warned the Applicant that his conduct in writing to drivers could have resulted in formal disciplinary action. Mr Thompson confirmed there would be no disciplinary actIon on this occasion. Mr Thompson made Mr Holden aware of the consequences he might face if the Applicant continued to make enquiries of people from outside the Applicant's "own risk area of responsibility as local Health & Safety Representative". This opinion that the Applicant was a local representative and should confine himself to local issues was expressed regularly during the Respondent's treatment of the Applicant. The Applicant was of course doing nothing wrong, there was nothing to warn him about, nothing he had done warranted any disciplinary action. Mr Thompson was attempting to curtail the Applicant from carrying out his Health and Safety representative's duties fully.
(54)Whilst at work the Applicant was approached by a driver whom the Applicant represented to enquire about a matter relating to their shift pattern following the second restructuring process. The Applicant dealt his member's queries and as a consequence he was three minutes arriving at his train.
(55)At a similar incident on 11th January 1999 two drivers at Grove Park wished to raise with the Applicant questions concerning health and safety matters. The Applicant dealt with the queries and as a consequence the Applicant was eight minutes late starting his train, it was empty, it was 4.08 am. The Applicant made up all of the lost time and arrived at the due time at the first station to pick up passengers.
(56)Following these two matters the Applicant was served a Disciplinary Form 1, dated 20th January 1999. On 21st February the Applicant was given a severe reprimand. The Applicant appealed. The appeal was heard by Mr Thompson on 19th April 1999, on the Applicants' successful yet appeal was upheld, Mr.Thompson wrote (page 88). "I write to confirm my decision to withdraw the charge. However, I would expect no such repeat and trust that this matter can now be put behind us". The Applicant had no alternative to deal with members questions on health and safety matters on an ad hoc basis as he was never given time off to deal with them specifically. Again Mr Thompson's decision was calculated to deter the Applicant from carrying out his Health & Safety duties.
(57)On 14th January 1999 the Applicant sent a report (the 1999 Report) to Her Majesty's Inspecting Officer of Railways.
(58)A copy of the report is at page 781 and following; in that report the Applicant raised Health and Safety concerns which the Applicant considered to be in the public interest. Copies of the report were sent to Mr O'Brien, Director of the office of Rail Franchising, John Prescott, Secretary State for the Environment, Mr Abbott, Principal Inspecting Officer of Railways and Mr Rix, General Secretary of Aslef. The report concluded (page 784). "In conclusion, Options For Improvement, I think that by whatever criteria anyone cares to use, a very serious situation has been created by making a group of safety critical workers work for excessively long hours. Add to this the numerous other problems I have mentioned, I believe the seeds for a disaster have been sown - a very serious incident is waiting to happen. A management that is dogmatic in its pretence that there is no problem compounds this deteriorating situation."
(59)The 1999 Report attracted a wider circulation than these to whom a copy was specifically sent.
(60)The Applicant posted a copy of the 1999 Report on the Health and Safety Notice-Board at Charing Cross and had copies printed off which he left on a table there for any of his members to take. The 1999 report caused great concem to the Respondents, management were upset. Mr Thompson discussed the 1999 report with Mr-Meadows, the Human Resources Manager who offered to carry out an assessment of the contents of the report.
(61)Mr Meadows sent his written assessment to the 1999 Report on 19th February to amongst others Mr Thompson. Mr Meadows concluded following his investigation that it was reasonable to conclude that the Applicant considered that the Respondent was seeking to operate an unsafe railway and indeed that the applicant had little or no confidence in the management's ability to run the company safely. Mr Meadow suggested a meeting of interested parties to determine the action necessary. The analysis prepared by Mr Meadows is set out at pages 797 to 801 and refers to the numbered paragraphs in the report which is copied at 793. When undertaking the assessment of the report Mr Meadows did not consult or enquire of the Applicant nor did he seek out the source of the facts/information on which the Applicant relied to support the allegations in the 1999 report. Mr Meadows does acknowledge in his assessment that a Report/Study into the effects on drivers of the restructuring of shift patterns and the changes in the provision of rest intervals and the arrangements of rosters was not pursued by management because of the costs involved.
(62)Mr Thompson met with the Applicant. No minutes were taken of the meeting between the Applicant and Mr Thompson. The Applicant recalls that Mr Thompson told the Applicant that he (Mr Thompson) had been told by those at Head Office "to deal with (the Applicant)". Mr Thompson shared with the Applicant managements concerns about the report and Mr Thompson warned the ApplIcant that in future he should either discuss matters with Mr Thompson or with management or not get involved at all. He should not be sending reports to the HMRI.
(63)Mr Thompson's principal concerns enforced at the meeting and repeated in his letter of 16th March to the Applicant related to "damage to the Respondent's business". The letter of 16th March is headed "Conduct that Damages the Business" and goes on to say "Whilst I belive there are genuine concerns and cause for further Information, I told you that some views expressed in your correspondence were not true and this position had been supported by HMRI. I referred specifically to assertions over the secrecy of the Connex SPAD group and that Connex does not take safety seriously. By this letter I am warning you that future instances of conduct that damages the business will be dealt with formally. As I stated without pre judging the outcome of that action, the consequances are likely to be serious".
(64)Mr Thompson did not discuss the report in detail with the Applicant at all. Did not produce any evidence to support his contentions that the 1999 Report was flawed or that some assertions were untrue. Did not himself investigate the 1999 Report or ask for information from Applicant to support the 1999 Report. Mr Thompson's response was a knee jerk reaction - was only concerned with damage to the business, was not concerned at all in sitting with the Applicant with a view to considering and discussing with the Applicant the Applicant's concerns over the Health and Safety issues. Mr Thompson failed completely to recognise whether there were any health and safety issues to be addressed. Mr Thompson transferred into the Charing Cross area in January 1999; at the same time as Mr Skilton [Assistant Operations Manager]. Mr Skilton was, in effect the Applicant's Line Manager and it would be to Mr Skilton that the Applicant would first have contact regarding Health and Safety issues. The Applicant had raised his worries over health and safety matters on occasions with Mr Skilton. Mr Skilton had, we were told, received training to enable him to undertake the duties of a health and safety representative and he had himself been a health and safety representative for Aslef between 1987 and 1993. Mr Skilton became the Applicant's line manager in January 1998. Mr Skilton opines that he has a good understanding of Health and Safety issues. Mr Skllton would meet the Applicant on a three monthly basis to discuss/consider Health and Safety matters at the local Health and Safety meeting. Mr Skilton was aware of the obligation on the Respondent to take health and safety matters seriously and acknowledged the Respondents obligations under the Health & Safety at Work Act 1974 and 1994 Safety Critical Regulations Railway Safety Case Regulations and Rail Track's own safety standards.
(65)An Inspection of the minutes of The Health and Safety meetings show that on a number of occasions the same matter appears on the agenda - on each occasion it is resolved that action on that particular matter is to be actioned by Mr Skilton - yet the minutes show that time and time again the matter has not been resolved and had to be raised and appears again at the next and often subsequent meetings showing that Mr Skilton had not addressed the problem as it still remained to be dealt with.
(66)In May 1999 the Applicant was absent from work, this triggered the need to review his sickness record in accordance with the Managing for Attendance Procedures. Mr Skilton sought advice of the Human Resources Manager, Mr Meadows who responded to Mr Thompson (see page 127 and 128). It was not clear to the Tribunal why it was necessary to consult with Mr Meadows. It seems to the Tribunal that the Respondent (Mr Skllton/Mr Thompson) felt that there was an opportunity to put the Applicant through the procedures to put pressure on him to get the case to stage 4 of the procedure. Mr Meadows was being asked to confirm that this could be done, in the penultimate paragraph of the letter at page 838 suggests Mr Meadows that mention should be made relating to the Occupational Health Service but that it was not appropriate to refer the Applicant at this Stage but a note should be made on file so that it could be documented for future reference.
(67)An experienced manager such as Mr Skilton would not in the normal course of things have needed to have referred the Applicant's sickness record to Human Resources. There was nothing unusual or exceptional about it. Here was again an attempt to put pressure on the Applicant.
(68)On 24th June 1999 without reference to the applicant whatsoever, Mr Skilton made a note which he placed on the Applicant's personnel file that he had seen the Applicant in the smoking room. The Applicant was talking with two Health and Safety Representatives who were smoking at the time, Mr Skilton documented this as the Applicant had in the past raised the issue of being exposed to smoke yet on this occasion the Applicant was seen in the smoking room. The Respondent having gathered this evidence against the Applicant considered that questions were raised relating to the provision of a "non Smoking area", what the Applicant had complained of was there was no where non-smoking drivers would be able to sit to have their meal. It was the inhalation of smoke at the same time as eating that affected the Applicant causing headache and nausea to the Applicant.

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