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Tribunal Decision Main Points

Some of the main points of the 'Extended Reasons' are set out below. The 37 page statement can be found HERE.
Added emphasis is ours. Applicant = L Holden; Respondent = Connex South Eastern.

'The unanimous decision of the Tribunal is that the Applicant was victimized contrary to Sections 44 & 47A and unfairly constructively dismissed contrary to Sections 100 and 103A Employment Rights Act 1996.'

'20 In the reasons above the Tribunal have set out the Applicant's letter of resignation in full. That letter explained the reason why the Applicant decided to terminate his employment. The facts relied on by the Applicant and cited in that letter the Tribunal find to be well founded. The conduct complained of by the Applicant we as a Tribunal find did occur and that such conduct was found by the Tribunal to have constituted a sustained campaign against the Applicant undertaken by the Respondent because of the Applicant's health and safety activities and because of his protected disclosures. The whole intention of the Respondent's conduct was aimed to force the Applicant to resign. The Respondents wished to be rid of the Applicant. They succeeded.'

'8 (73) 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.'

'17 We find that the Applicant was victimised and did suffer a detriment namely the treatment referred to in the facts found above and separately highlighted in Mr Laddie's written submission at paragraphs 29 through to paragraph 51 of his written submission.'

'8 (44) ....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.....'

'16 From the evidence and the facts which we have found above after the Applicant's first report the Respondent paid particular attention to the Applicant and paid minute detail to the Applicant's conduct and issued disciplinary charges against him where in the normal course the conduct complained of would not have merited going down the disciplinary process.'

'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 Tribunal's Statements on Connex Drivers' Hours and Fatigue
'8 (24) After the [drivers'] 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.'

'8 (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 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.'

'8 (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. '

'8 (35) .....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. '

'8 (37) ....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.'

Holden Verses Connex South Eastern > Chairman's February Statement

Holden Verses Connex South Eastern > February's Press Statement

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