Home > Holden Verses Connex > Decision of the Employment Tribunal Part 5
Mr Laurance Holden
Connex South Eastern
8  (69)On 18th June the Applicant was absent from duty, see page 848, the Applicant was charged for "being absent from duty. On 18th June 1999".
(70)On 18 June the Applicant had telephoned in at 14.15 pm he was due to be on duty at 14.49 and it was recorded that he was absent as his car broke down. The Applicant wrote his reasons for absence page 845 to 847. Mr Skilton took the disciplinary hearing, the Applicant was represented by Mr Dale, Trade Union Official. On 18th June the Applicant was on his way to work his car broke down - the car was spilling diesel all over the road. The Applicant in dealing with the problem ended up with diesel over his clothes he did not progress in to work but phoned to notify his absence. The Applicant was given a reprimand and a final warning for his absence. The Applicant was not allowed to treat the absence as a holiday as others were permitted to do in similar situations.
(71)The Applicant appealed that decision. The appeal was heard by Mr Thompson on 28th September, the appeal failed. Mr Thompson upheld the reprimand and final warning. At the appeal it was pointed out that other employees who had broken down on their way to work or when they were not able to attend work for some unexpected reason had not been punished but had been given opportunity to take the day as a days holiday. Mr Thompson accepted that it was true that the Applicant's car had broken down on the occasion but Mr Thompson on the basis of what he felt was Mr Holden's poor attendance record in the past, although he accepted that it had improved considerably, and as Mr Holden's car had broken down on a previous occasion which was dealt with at a Stage 3 hearing in October 1998 and that Mr Holden as a driver was expected as a professional to set and adhere to high standards and that it was each employee's responsibility to be able to get themselves to work on time he therefore felt that the punishment was appropriate. This conduct was heavy handed, there was no evidence to show that other employees were treated in the same way.
(72)There was an area Health & Safety Committee meeting on 24th June at Cannon Street. The meeting was attended by Mr Skilton, the Applicant and a Mr Dully. The Applicant made a request at the meeting that he could have a meeting so that he could meet with six Metro Health & Safety Representatives. The Applicant's request was met with Mr Skilton's response that that would be of no value in dealing with drivers questions when he had no control over those drivers. Mr Skilton wholly missed the point of Health & Safety issues. Here was evidence of the "local" representative being treated literally.
(73)As stated previously a number of matters were raised by Mr Holden with Mr Skilton who promised to action them by agreed dates set out in the minutes of the various Health & Safety meetings. Issues were raised for example: Concerning health and safety representatives acting as risk assessors, raised by the Applicant on 24th June with Mr Skilton to action; raised again at the meeting on 29th July tor Mr Skilton to action yet still nothing done till 8th September. This was typical of the response the Applicant was receiving, (when he carried Health & Safety issues) there seemed to be no sense of urgency or sense of realism on the part of the Respondent management in tackling Health and Safety issues raised. Management seemed reluctant to properly investigate them. Whilst both Mr Thompson and Mr Skilton acknowledged that the Respondent had, in carrying out its operations, to be conscious of health and Safety concerns they merely paid lip service to the requirement and did nothing to ensure that concerns raised were thoroughly investigated and addressed and unsafe practices or situations made safe.
(74)The Applicant submitted a further report to the HM Railway Inspectorate and others on 10th October 1999 the Second Report (copy page 921). The Applicant had been working on this report for some time and long before the 5th October 1999 when the Ladbroke Grove train tragedy occurred.
(75)The Applicant had been on sick leave on 21st September. By letter dated 15th October 1999 Mr Edmunds reminded the Applicant that he was on a final warning (page 927).
(76)On 18th October 1999 the Lewes train crash occurred.
(77)The Applicant's second report was acknowledged by Mr Coleman the Chief Inspector of Railways by letter of 13th October.
(78)The Ladbroke Grove tragedy was a result of a SPAD. It was essential that every effort had to be made to eliminate the occurrence of SPADS.
(79)Various newspapers during Oclober 1999 carried articles referring to the Second report, the Evening Standard, South London Press, Sunday Times and News of the World.
(80)The Second report had been sent as before and had also been pinned to the Health and Safety notice-board with copies available for any of the Applicant's members to take.
(81)On 4th November 1999 (page 961) the Applicant was issued with a Form One charging him with "the undermentioned irregularity" namely "wrIting and distributing a report of 10th October 1999 "Connex South Eastern Deteriorating Safety Situation, SPAD'S reduction in training, contested SPADS, that contains emotive inaccurate inciteful, personal opinions and statements that are damaging to the company".
(82)The Applicant sent copies of the Second Report on or about 21st October to John Prestcott and to Lord Cullum.
(83)On 22nd October 1999 Mr Edmunds, Drivers Standards Manager held an "investigatory meeting" with the Appllicant. This meeting was out of the blue - had not been planned - The Applicant was not informed what it was about beforehand so that he could prepare. Mr Edmunds discussed the Second Report with the Applicant in particular with regard to the Applicant's assertion that practical training had been reduced. Mr Edmunds asked the Applicant to explain what it was that was very worrying to the Applicant. Mr Edmunds asked the Applicant for the names of local managers referred to end was told that they were DSM's operating managers, the Applicant did not give specific names. The Applicant said that he believed that new recruits were having pressure put on them. The Applicant's view was that new drivers accounted for a large proportion of SPADs, Mr Edmunds also raised the question that the Respondent company in the Applicant's view having been accused of "getting things done on the cheap". The Applicant was asked about information being doctored in lost control reports. The Applicant of course had not been aware there was to be a meeting nor of the matters to be discussed and had not brought his papers with him. Mr Edmunds had undertaken no research to establish whether Mr Holden was incorrect in the statements made. Mr Edmunds on 23th October wrote to Mr Benson an Operations Manager at Connex South Eastern pointing out that he had an investigatory interview with the Applicant and discussed a report which had been sent by the Applicant to the Railway Inspectorate. Mr Benson was asked to comment on the allegation that "Iocal managers have accepted that eighty percent of new drivers had been involved in safety related incidents within six months of their final assessment". Mr Edmunds asked whether Mr Benson was aware of the identity of any manager who had written such report and or whether any such report existed and if so Mr Edmunds asked for any comments that Mr Benson might have on it.
(81)Mr Benson responded on 16th November, (page 964) saying that he was unable to trace any written report having contacted Driver Standards Managers and Service Delivery Managers in the South area.
(82)The Applicant was issued with a form one on 4th November 1999 (copy at page 961). The charge was writing and distributing report of 10th October 1999 Connex South Eastern. Deteriorating Safety Situation, SPADS, reduction in training, contested SPADS "that contains emotive, inaccurate, inciteful, personal opinions and statements that are damaging to the company."
(83)The disciplinary hearing on 9th December was held by Mr Skilton. The Applicant was represented by Mr G Walker a Trade Union representative. At the disciplinary hearing Mr Walker, speaking on behalf of the Applicant, insisted that the Applicant had in producing the report been carrying out his health and safety functions seriously, he insisted that the Applicant had not sent a copy of the Second Report to the press, confirmed that the Applicant had made copies of the second report available to colleagues at Charing Cross. Mr Walker argued that the Second Report reflected not only the Applicant's views but was based on the Applicant's own knowledge and on information provided by the drivers. The Applicant insisted that all of the information in the report was correct. Mr Walker emphasised that the Applicant was in compiling and producing the Second Report carrying out his Health and Safety duty and had no intention of leaking the Second Report to the press so as to cause damage to the Respondent company
(84)The Applicant himself, emphasised that every issue dealt with in the Second Report was in the public interest confirmed that he had only contacted the HM Railway Inspectorate and that he had not sent copies of the Second Report to the Press and further confirmed that in his opinion he was raising serious matter that he had a legitimate to right to do so.
(85)During the disciplinary process there was never any question raised by Mr Skilton requesting the Applicant to go through the contents of the Second Report and to prove that what had been written was correct and whether it could be supported by evidence - there was no investigation or discussion whatsoever into details of the charge namely that the report contained emotive, inaccurate, inciteful, personal opinions and statements damaging to the Company.
(86)After a seventeen minute adjournment Mr Skilton announced his finding that on a balance of probabilities the Applicant would have known that by leaving copies of the report around in an area of Charing Cross, albeit that the area was not open to the public but only open to staff, and at such an emotive time that the contents would get to the press. Mr Skilton particularly referred to the words "doctoring" of loss control reports and treating health and safety on the cheap. Those said Mr Skilton were opinions and not fact. Mr Skilton did not agree that the Railway Inspectorate had agreed with the Applicant on all matters and Mr Skilton also pointed out that the Applicant had in fact been given more information on SPADS recently. Mr Skilton issued a severe reprimand and a final warning to the Applicant.
(87)The charge which the ApplIcant had been summoned to answer was that he wrote and distributed a report of the 10 October 1999, Connex South Eastern - Deteriorating Safety situation, SPADS, that contains emotive, inaccurate insightful (sic) personal opinion and statements that are damaging to the Company. The notes at page 985 show the basis in which Mr Skilton awarded a severe reprimand and final warning. The Tribunal sets out the note in full. "The Hearing Officer noted the comments that the Advocate had made concerning the charge and referred to the following quotes from Mr Holden's October 1999 report. 1 Mr Holden reported that: Loss Control reports were doctored. That this issue had been dealt with earlier in the year and the matter was closed. Mr. Holden had been told that the Operations Manager could not confirm or deny. This was old information. Therefore this statement was an opinion not fact. 2. Mr Holden reported that Connex South Eastern is producing a time bomb ready to go off at any moment. That this statement was an opinion not fact. Mr Holden reported that Connex South Eastern is known for getting things done on the cheap. That this statement was an opinion not fact. The Hearing Officer summarised the hearing and said 'that the Form 1 was for statements that were emotive, inaccurate, insightful, personal opinions and statements that are damaging to tho company all of which these were. He also said that on balance of probability Mr L. Holden in leaving documentation around and given the emotive time (following collisions in October) knew that the report would get into the press. Therefore, the charge was proved. The Hearing Officer raised a further concern that Mr.Holden was selective with his information. There was a 40% reduction in SPAD's in 1999 over the previous year and that Mr.Holden was fully aware of this. Mr.Skilton had personally provided Mr.Holden with more information than previous managers and that HMRI do not accept all that Mr.Holden has stated. The Hearing Officer awarded the punishment as severe reprimand and final warning. The hearing closed at 11.58 with Mr L Holden being reminded that he had the right to appeal within 7 days."
(88)At a meeting an 22nd December when Mr Edmunds met with the Applicant he confirmed the decision reached by Mr Skilton that the Applicant would receive a reprimand and final warning. A note of the meeting is at page 987. At the meeting Mr Edmunds also issued the Applicant a final warning because the Applicant had had a day's absence. Mr Edmunds reminded the Applicant that this was a final warning and that "final means final". The Applicant was told that he was receiving a "Final Warning for writing and distributing a report containing emotive inaccurate inciteful personal opinions and statements that are damaging to the company". The note records that the Applicant was advised that this was a final warning any further incidents of this nature would result in formal discipline with dismissal a real option.
(89)The note at page 987 goes on to record that the Applicant's attendance "over the last three years attendance had improved from very poor in 1997 to having only 1½ days sick in 1999, but (the Applicant) will remain on final warning which will be reviewed end of June 2000" - Mr Edmunds was extending the period of the Applicant's final warning for absence. The Managing for Attendance procedures do not allow for that. At the same meeting on 22 December 1998 Mr Edmunds served on the Applicant a further Form One - alleging that the Applicant had caused unnecessary delay to the Grove Park, Charing Cross train on 23 of November 1999, the Applicant had already explained that the late start was caused because the stock placement sheets had not been finalised and published and that having prepared two carriages he was not able to finalise preparing the train until later, i.e. the reason for the delay was not the Applicant's fault. Situations like this would not normally result in a form one-disciplinary charge being raised against the driver.
(90)The Applicant had been provided with no information whatsoever prior to his disciplinary hearing, no information to challenge that the statements which the Applicant made in his report were untrue or were unsupported by the facts and the exchange of correspondence between Mr Edmunds and Mr Benson was not produced. After the disciplinary hearing Mr Skilton telephoned Mr Walker the Applicant Representative to inform him that there were some papers relevant to the matters raised against the Applicant which had not been disclosed. Mr Walker was not really concerned and asked for the papers to be "faxed over".
(91)Mr Walker gave evidence to the Tribunal for the Respondents, he is an ASLEF Trade Union member originally a train driver but now works full time on trade union duties.
(92)Mr Walker is a "company man", he did not wish to confront the Respondents either as a trade union representative - or in his personal capacity. Mr Walker did not take up the Applicant's case as he should have done, he became part of the Respondent's campaign against the Applicant because of what the Applicant had done. Whilst he accepted that health and safety matters had to be addressed he considered the system, as it was, worked perfectly well with local management dealing with issues on a local basis and ASLEF being involved in the national and more serious matters. Mr Walker believed that the measures in place were adequate. Mr Walker had no doubt about the Applicant's sincerity. Given Mr Walker's opinion that as a (local) health and safety representative the Applicant should concentrate on local issues and whilst Mr Walker accepts that the Applicant had the right to deal with any health and safety concerns in the way in which he did, Mr Walker's view was that if every Health & Safety Representative did what the Applicant did then that would undermine the formal machinery and to do so would send the wrong message to the Trade Union members and encourage local representatIves to air their concerns outside established machinery. Mr Walker had absolute confidence in ASLEF and management in agreeing and resolving safety issues. Mr Walker was of the opinion that the safety of working arrangements after restructuring should not be raised as the issue had been considered by the Union before recommending the restructuring so he could not see what safety issue could later arise. Mr Walker was disingenuous before the Tribunal as, at first he denied being aware that fatigue was a concern shared by drivers. Mr Walker reluctantly then agreed under cross examination that he was aware that drivers felt that the restructuring and the new work patterns caused fatigue and that he had been aware of that.
(93)Mr Walker's recollection of the disciplinary hearing was that the Respondent's main concern was that the report had been sent to the press.
(94)Mr Walker did not challenge the management to substantiate their allegations nor did he ascertain from the Respondent which parts of the report they were concerned with so that the Applicant could obtain evidence to support his report. There can be no excuse for such a serious failure to properly investigate the allegations against the Applicant. There is no evidence before the Tribunal to show what facts Mr Skilton found, and what facts he relied on to substantiate his finding that the charge was proven. It is clear from the notes that the hearing concentrated on whether the Applicant had been responsible for the details of the Second Report appearing in the press. That of course was not the charge. The Tribunal were told that it was Mr Skilton's task to deal with the more complex disciplinary cases that arose within Connex. The Tribunal are surprised at that. Mr Skilton portrayed to the Tribunal as someone who was totally out of his depth in the area concerned with the disciplinary process and in the post in which he was working he was out of his depth and unable to work under pressure. Mr Skilton seemed content to deal with matters as he was instructed by those superior to him even if inappropriate. Mr Skilton is someone with little management stature.
(95)At the meeting on 22 December with Mr Edmunds the Applicant specifically went out of his way to clarify with Mr Edmunds exactly what the effect of the final warning following the disciplinary hearing on 9 December meant. Mr Holden was anxious to clarify whether he would be disciplined for any conduct outlined in the charge or whether all or the "ingredients" needed to be present.
(96)Mr Edmunds made it clear to Mr Holden that he would be disciplined even for the sole act of writing and distributing a report to the Railway Inspector. Mr Edmunds denied that he had given such impression however we preferred the Applicant's evidence.
(97)The Applicant wrote to Mr Edmunds on 6 January setting out very clearly Mr Holden's understanding of the position, copy of the letter is at page 997/998 and reads:-

I wish to confirm the outcome of the meeting that took place 22 December '99 at London Bridge. Those present: C Edmunds, L Holden. There were no representatives, no minute takers at the interview.
You re-affirmed the outcome of the appeal which took place 28 September '99. This involved one day's absence when my car broke down. You made it clear that any absenteeism would lead to a Form 1 disciplinary procedure, and that the outcome would likely be dismissal. I pointed out the unfairness of this and asked for clarification: would this be the case with other circumstances beyond my control, i.e. if I had to rush someone into hospital, if I had to deal with a burst water pipe, if I had found my car or house burgled? You said each case would be looked at on its merits but the likely outcome would be a disciplinary hearing.

You then re-affirmed the outcome of the disciplinary hearing which took place 9
th December '99. This came about as a result of my writing a report to Her Majesty's Chief Inspecting Officer Of Railways, with copies sent to Lord Cullen, Chairman of the Public Inquiry into the Ladbroke Junction Rail Collision, and to the Secretary of State for the Environment, Transport & the Regions. The charge was:

"Writing and distributing report of the 10
th October 1999 "Connex South Eastern : Deteriorating Safety Situation : SPAD's, reduction in training, contested SPAD's" that contains emotive, inaccurate, inciteful, personal opinions and statements that are damaging to the company."

You made it clear that any re-occurrence would lead to a Form 1 disciplinary procedure, and that the outcome would likely be dismissal. I pointed out the unfairness and seriousness of this, and the possible legal consequences. I asked for clarification: would Connex discipline me for allegedly carrying out any one of the items contained in the charge, or only if I were to allegedly carry out all of the items contained in the charge? You made it clear that I would be disciplined if Connex could allege that I had carried out any one of the items mentioned in the charge, i.e.

  • writing and distributing a report to the Railway Inspectorate;
  • writing and distributing a report to the Railway Inspectorate that contains emotive statements;
  • writing and distributing a report to the Railway Inspectorate that contains inaccurate statements;
  • writing and distributing a report to the Railway Inspectorate that contains inciteful statements;
  • writing and distributing a report to the Railway Inspectorate that contains personal opinions;
  • writing and distributing a report to the Railway Inspectorate that contains statements that are damaging to the company.

You then gave a brief update of my position within the 'Managing For Attendance' procedure. You made it clear that I had been on a Final Warning since October '98. You pointed out that in your opinion there had been an improvement. I had one day's sickness since September '98. You stated that I had 1½ day's sickness since September '98 (the extra half day being due to an industrial accident). I pointed out that, as with many other drivers, I had actually come to work on some occasions when I was ill. You pointed out that you would continue monitoring my sickness performance until June 2000. If there were no incidents of sickness up until June, you will be able to review the situation and take me off the Final Warning.

After the interview had finished, you handed me an envelope. This contained a No. 1 Disciplinary Form."
(98)Mr Edmunds did receive the letter, he did not acknowledge the letter and nor did he respond to correct any misunderstanding if there was one. We do not accept Mr Edmunds explanation that the reason that he did not acknowledge the letter or reply to it was because the Applicant had resigned. We have no doubt that if Mr Edmunds had thought that any thing in the Applicant's letter was not a true reflection of what was said at the hearing then he would have readily indicated to the Applicant the correct situation as Mr Edmunds saw it. He did not.
(99)In the Applicant's letter of 6 January the Applicant also raised a question under the managing for absence procedure and Mr Edmund's confirmation of the reprimand and the final warning for the day's absence when the Applicant's car broke down and that Mr Edmunds had confirmed that a similar incident in future would likely to lead to a disciplinary hearing, The Applicant confirmed in his letter that although Mr Edmunds had acknowledged that there had been an improvement that Mr Edmunds had confirmed that the Applicant's sickness performance would still be monitored and that the final warning had in any event been extended to June, a course which was not available to Mr Edmunds to take under the procedure. Mr Edmunds did not respond. The Tribunal feels that Mr Edmunds would have replied had he felt that the Applicant's letter contained matters which were incorrect.

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