Home > Holden Verses Connex > Decision of the Employment Tribunal Part 6
Mr Laurance Holden
Connex South Eastern
8  (100)The Applicant concluded that his treatment and the disciplinary sanctions imposed by Messrs Skilton and Edmunds to be grossly unfair in that in his capacity of Health and Safety Representative he had written a report to the H M Railway Inspectorate expressing concerns on safety issues and he had been given a final warning for so doing, that under the attendance procedure in respect of an absence caused because of the breakdown of his car he had been given a final warning and that the Respondent had acted outside the permItted procedures in Managing Workforce Absence by extending his final written warning to June 2000 which Mr Edmunds had no power to do, and also that Mr Edmunds had instructed the Applicant that he must never write a report to the H M Railway Inspector in the future and that if he did then he would be subject to disciplinary action. In addition the Applicant had been handed a Disciplinary Form 1 relating to delays to a train on the 23 November 1999 an event which was clearly not the responsibilIty of nor the fault of the Applicant but of others. The Applicant resolved that because of this series of blatantly unfalr treatment which he concluded was in response to his health and safety activities and because he had written report to HMRI then he had no alternative but to resign. The Applicant's letter of resignation read:

Dear Sir,

I am writing to you following notification of the recent disciplinary finding and punishment against me of 9 December 1999. I cannot accept the finding, that in writing and distributing a report in my capacity as a Health & Safety Representative to Her Majesty's Inspecting Officer Of Railways, which dealt solely with health and safety matters that I damaged the company. This decision amounts to a fundamental breach of my Employment Contract and I have no alternative other than to tender my resignation forthwith. I am prepared to give you one month's notice from today's date.

Frankly the company's behaviour towards me in recent times has been intolerable and something that no self-respecting employee should have to deal with. This finding is the last in a long line of disgraceful incidents perpetrated against me. In addition to this, the administering of 2 final warnings and the issuing of yet another notice of discipline, on the 22
nd December, were further examples of the disproportionate approach that the company has taken against me.

Writing and Distributing the Report of 10 October 1999.
I stand by all that was contained in my Report of 10 October. I began preparing my Report prior to the recent accident at Ladbroke Junction but my Report is all the more pertinent in light of that incident.

The reduced practical training for new recruits is a massive problem that Connex is creating for itself. This is inextricably linked with the issue of safety and a matter that Her Majesty's Inspecting Officer Of Railways has confirmed is a cause for concern.
Similarly, the lack of fire training is something that I cannot be criticised for bringing to the attention of Her Majesty's Inspecting Officer Of Railways. Indeed, as a Health & Safety Representative, I would be failing in my duty to my colleagues and the company if I did not draw attention to this issue.

As the company has long been aware, one of my main concerns has been the correlation between Drivers' Restructuring and the incidence of SPADs and other safety related incidents. My Report dealt with concerns expressed to me by other drivers and views which I personally hold, that a proportion of SPADs are caused by driver fatigue; also that the shift patterns which have resulted in excessively long hours, with inadequate breaks for drivers, are the principle cause of driver fatigue. I believe that the research recently published by Circadian Technologies shows this link between long hours, fatigue and the occurrence of SPADs.

This coincides with inaccurate completion of Loss Control reports as highlighted in my previous report of 14 January 1999 and the continued intimidation of drivers who complain of fatigue by management.

By instigating disciplinary action and by finding the disciplinary charges proven, Connex has subjected me to a detriment in breach of the Public Interest Disclosure Act 1998. As a Health & Safety Representative I was entitled and some may say duty bound to raise issues concerning health and safety with Her Majesty's Railway Inspectorate. Similarly I cannot be criticised for circulating copies of my Report to those affected by its contents, i.e. the drivers that I represent. I have previously been accused by the company of making statements that are inaccurate and do not reflect the views of some drivers, allegations which in my view are without any foundation. However, in order to avoid these accusations being levelled against me, it seemed important to me to let the drivers know what I was saying on their behalf and yet I find that I am still criticised by the company, when I do so.

Having spoken to the drivers that have seen my Report, I have been told how it mirrored their own concerns. I have personally been thanked by Mr. Vic Coleman, Her Majesty's Chief Inspecting Officer Of Railways, for sending him my Report. If the company was serious about health and safety issues it would have welcomed my initiative rather than try to bully and intimidate me into silence. What on earth is the point in having Health & Safety Representatives if our views are ignored, and we cannot highlight our concerns to the regulatory authority?

Disciplinary Investigation Procedure
I would have thought that I would have been entitled to have been investigated by someone who if not independent was at least capable of acting objectively. I was called into the interview with Mr. Edmunds, the Drivers' Standards Manager at London Bridge without any notice at all. I was asked to justify certain statements in my Report to the Railway Inspectorate. I did my best to do so but it was difficult as I was unrepresented, completely taken by surprise and did not have the chance to bring any documents with me which would have supported my comments. This was meant to be an investigatory interview but as can be seen from the manager's comments at the end of the interview, he was mainly concerned in defending his colleagues from criticism in my report.

To make matters worse, I did not have the chance to ascertain at the Disciplinary Hearing any evidence that was being taken into account at that Hearing. There was no evidence presented against me by the Adjudicating Officer and yet I was expected to be able to deal with any points that he felt relevant, without knowing what they actually were.

I have considered long and hard as to what to do as a result of this finding. I note that the disciplinary procedure only gives me the right to appeal against the punishment and not the finding. This seems inherently unfair bearing in mind the way the investigation and hearing were conducted. I have come to the conclusion that I have no alternative other than to resign and seek justice through the Employment Tribunal.

Breaches of the Safety Representatives and Safety Committees Regulations 1977
Connex has consistently breached these Regulations and prevented me properly carrying out my job as Safety Representative. I have submitted various Reports to the company in the past highlighting these breaches yet no action has yet been taken to remedy them. Connex has refused to consult with Health and Safety Representatives over the introduction of DOO P; Drivers' Restructuring; Charing Cross Re-signalling; Networker Coupling Failure/Locking of Intermediate Doors; Signals Passed at Danger, Attacks/assaults on drivers; Accommodation at Charing Cross. Connex has consistently refused to allow Health & Safety Representatives to carry out inspections following notifiable accidents. It has consistently refused basic facilities to Health & Safety Representatives. It has also consistently refused to respond to safety reports.

Similarly, the Regulations have been breached by the refusal of Connex to allow me information that I need to carry out my role as Safety Representative including Control logs/Loss Control Reports, the Risk Assessment prior to Drivers' Restructuring and the Report of Circadian Technologies Limited which featured in previous Reports to the Inspectorate.

As a Safety Representative I should have been entitled to take such time off with pay during working hours as is necessary to perform these functions. This has consistently and continuously been refused by Connex and most of the work that I have done in this regard has been done in my own time, and potentially at my own risk. Indeed on two occasions when I was detained by other drivers concerning health and safety matters for short periods of time I was actually subjected to disciplinary proceedings when my train was a few minutes late as a result. I would also refer to the refusal of Connex to organise meetings on health and safety issues when requested, and the failure to action various issues raised by Representatives at the time or even at all.

On three occasions (including October 1999) I have been subjected to discipline or the threat of disciplinary proceedings being instigated against me for preparing Reports on health and safety matters. In November 1997, I was 'interviewed' by a Drivers' Standards Manager concerning an article that was submitted to the Locomotive Journal about Drivers' Restructuring. In March of 1999 I was threatened with serious disciplinary proceedings following my Report to the Railway Inspectorate of 14 January 1999 and then of course there is the latest incident. Regardless of whether such conduct breaches the Public Interest Disclosure Act 1998, it certainly breaches Section 44 of the Employment Rights Act 1996.

The fact that Connex has still not implemented a Smoking Policy in breach of health and safety legislation is an ongoing cause of concern for me and many other employees who find it intolerable that we have to put up with conditions which are potentially injurious to our health, especially when every time our concerns are raised they are ignored and not acted upon.

Disciplinary Action 6 August 1999
The finding against me and the imposition of a reprimand and final warning on 6 August 1999 which was upheld on appeal on 28 September 1999 is wholly unjustifiable. The fact of the matter is that my car broke down in circumstances completely beyond my control. To find that I am guilty of misconduct on the grounds of absence beyond my control was a conclusion that no reasonable employer could or should have reached. This is indicative of the heavy handed and intimidatory management style adopted by Connex towards its drivers that I have been concerned about.

Managing for Attendance
On 21 September 1999 I took one day off sick. This was the first day's sickness that I had taken for 12 months. However, this resulted in receiving a final warning. This too is indicative of a complete breakdown of mutual trust and confidence between employer and employees. The fact of the matter is that I could not afford to take a day off sick even though I felt genuinely ill and far too ill to safely be able to drive a train. This of course is never a concern for Connex who will insist that drivers come into work to drive trains when they know they are unfit to do so and threatens those drivers with the sack if they dare to take a day's sick leave.

I can no longer be part of a company that treats the health and safety of its staff and customers with such contempt. It is with deep regret that I have come to this conclusion after more than 25 years loyal service within the industry. Everything I have done in terms of health and safety has been done for the purpose of benefiting everyone in the industry.

I would ask you to consider in the month that I have remaining how you feel I should be compensated for the treatment that I have suffered at the company's hands.

The Tribunal has set out the Applicants letter of resignation in full as it clearly shows the reason why the Applicant reacted in the way that he did. The Applicant's resignation was accepted by Mr Edmunds by letter dated 4 January 2000, the letter read page 996.

"Your letter of the 27th December 1999 to the Operations Manager Metro North was received today 04th January 2000. I do not agree with many of the points you raise. These have already been answered, or, as you state, will be aired in another forum.
I accept your resignation. In light of your seniority and the voluntary work you have undertaken whilst in our employ, I do not require you to work your period of notice.
Please contact me to discuss the return of Connex property and to formally agree your last day.
I wish you all the best for the future."
(101)Mr Edmunds made no attempt whatever to clarify with the Applicant why he was resigning. It is clear from the second paragraph of Mr Edmund's letter that Mr Edmunds was aware that the Applicant felt he had been forced to resign and would be claiming constructlve dismissal and yet Mr Edmunds was content to deal with the issues in another forum - ie the Employment Tribunal. The reference to voluntary work in the third paragraph of the letter was to the Applicant's Health and Safety Representative's duties. Mr Edmunds could have and indeed should have notified the Applicant that the Applicant's application for transfer to Tonbridge which the Applicant had been waiting for, for some three years had been approved and would be in place within the next few weeks. It was clear that the Respondent was not prepared to give the Applicant this information as if they did he may have stayed - they were happy to see him go. They had put pressure on him to leave. To have notified him of his transfer to Tonbridge would have had a contrary effect to the pressure being put on the Applicant to make his life difficult.
(102)Even after the Applicant's resignation he was writing to the Respondent and to ASLEF offering assistance on Health and Safety matters.

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