Home > Holden verses Connex South Eastern > Closing Submissions > Victimisation






  • CONTINUED    SECTIONS   28   -   55

  • Victimisation

    A has identified a series of specific incidents of victimisation by R. They are chronologically related to the two protected disclosures made by A.

    A.   Warning re Letter to ASLEF

    A wrote a fiery letter to ASLEF (p.499). It criticised the union and R. It was unpublished, although copies of the letter were available. A was warned in an interview with M. Bloomfield not to use the H&S notice case at Charing Cross to display his personal opinions (p.520-4). JT conceded that there was no basis for inhibiting A in such a manner.
    Although this was a relatively early incident, it indicates R's kneejerk response to criticism, namely to silence the critic rather than discuss the issues raised.

    B.   Being placed on Stage 3 MFA

    On 9th June 1998, SG placed A on a stage 2 warning (p.647). Subsequently, A was absent from work for 4 days (24th and 25th July, and 20th and 21st September (720f)). On all 4 days, the reason for absence was fatigue.
    The absences triggered an MFA stage 3 interview with SG, resulting in A being placed on a final warning re his attendance (p720b-e). A argues that being placed on a final warning was clearly unfair:
    given that stage 3 could only be triggered at all by two absences or 5 days' sick over a 13-week period, A only just "qualified" for a stage 3 warning; perversely, if he had had been absent for four days in a row, he could not have been placed on a stage 3;
    SG failed to take into account A's fatigue13
    SG unreasonably refused to accept that A was not absent on 6th September, despite A indicating that he had booked on;
    SG took into account irrelevant factors in deciding that there had been no "improvement" in A's attendance record (see p.720d )14;
    It appears that SG applied the MFA procedures rigidly, without using the managerial discretion that is fundamental to the operation of MFA15.
    SG's attitude to A is a cause for concern - SG took the view that A was only concerned about H&S concerns "when it suited him". SG was also responsible for the warning issued to A re the late trains in January 1999.
    The way in which A was dealt with under MFA ought to be capable of comparison with R's other employees; R was ordered to provide comparative data ordered by the Tribunal at the adjourned hearing. The information provided by R has been woefully inadequate and in clear breach of the order. R has neither explained the failure to comply nor apologised for it. Its failure to do so has prejudiced A in his ability to prove his claim.

    C.   A's warning for harassment

    In carrying out his functions as a H&S representative, A tried to investigate SPADs. On 22nd December 1998, he wrote letters to drivers involved in SPADs (p.754/5) asking for information. One driver complained about "confidential information" being passed to a third party (p.789). Rather than inform the driver that A was wholly entitled to request information from him, and that the information was not confidential, JT warned A about the possibility of being disciplined for harassment (p.590b). By the time that JT spoke to A, A's first report had been featured in the press.
    R' s defence to this is that it operated under an innocent mistake as to the functions of a health and safety representative. It is submitted that this is unbelievable: the Regulations are clear; R's safety procedures expressly take effect subject to the Regulations (p.49-55, esp. paras. 6-9 and 16); A repeatedly wrote to R and other parties reminding R of its breaches of the law as it related to H&S representatives.
    It is submitted that this is a clear instance of R intimidating A with the threat of disciplinary action should he attempt to perform the function of a H&S representative.

    D.   Disciplinary action for late January trains

    On 7th (p.773) and 11th (p.780) January 1999, A's trains were delayed for a few minutes because he was approached by drivers to discuss H&S issues. His first report was sent to HMRI on 14th January and was in the press a few days later. On 20th January, A received a Form 1 (p.787).
    A initially received a severe reprimand for both charges. It is submitted that the disciplinary action amounted to victimisation:
    the delays were trifling and had no effect on R's services16;
    the delays were brought about primarily because A had not been granted time off to deal with H&S issues;
    contrary to the normal practice where there are delays, A was not spoken to informally by a DSM or SDM;
    there is no other instance of R disciplining any driver for a late train since 199717;
    the timing of the Form 1, so soon after the publication of the first report, raises questions about SG's motivation18.
    R is not assisted by JT's decision to uphold the appeal. He should have done so in any event bearing in mind the nature of the offence. His mention at the appeal of the forthcoming industrial action suggests that his true reason for allowing the appeal was political.

    E.   Warning re the January report

    The publication of the January report must have been damaging and embarrassing for R. It is submitted that JT's evidence that people were "gossiping" about it at Friars Bridge Court is an understatement19. It is submitted that all of the circumstances of the subsequent action point to A being victimised:
    an analysis of A's report was prepared by AM; the circumstances of the decision to have an HR employee write a technical report have not been satisfactorily explained20 and it suggests that HR expertise (disciplinary) was the ultimate purpose for the report; the disciplinary procedure at p.965 contains no provision for this type of report;
    AM's report was distributed to a number of executives at R21, including the Operations Director, suggesting that A's report had been taken very seriously;
    AM's suggestion that there be a meeting of "all those interested parties" is a further indication that there were many people concerned about the impact of A ' s report. Was there a meeting?
    A was not called to a disciplinary hearing. He was dealt with outside the procedures. It is submitted that the only possible reason for this course of action is because AM had advised that he could not be disciplined for writing the report. In dealing with A informally, R also avoided A's right to be represented.
    AM's report (p. 797-801) was not disclosed to nor discussed with A at the meeting with JT. Many of AM's conclusions either supported A or did not contradict him. It is submitted that JT was hiding this information from A, notwithstanding that he was entitled to it as a H&S representative. Further, JT told A that he had been sent by head office to "deal with" A.
    JT's letter confirming the warning (p.816) indicates that he "told" A that some of his views were not true; the letter also shows that JT's concern was "conduct that damages the business" rather than inaccurate allegations about safety.
    It is submitted that A was dealt with in a wholly inappropriate and heavy-handed manner. Rather than being warned in very serious terms in a way that fell outside the recognised disciplinary procedures, he should have been approached to justify his position and to comment on AM's report. R showed no interest in tackling A' s concerns, merely in preventing him from doing the same again.

    F.   R 's attempt to progress A to Stage 4

    On 2nd June 1999, AM wrote to JT informing him that A should not be dismissed at that stage (p.837/8). A number of points arise:
    No satisfactory explanation has been given for why JT was written to by AM22. It is submitted that the only explanation is that he asked KS to prepare the papers, to approach AM and to ask AM to write back to him.
    AM's letter is written from the perspective of a review of a proposed decision to dismiss A. However, A had only had 1 day off sick since his stage 3 warning in October 1998 and the MFA procedure could not have been automatically triggered, It follows that KS and JT were seeking advice as to whether or not it was possible to dismiss A in the knowledge that his attendance had improved radically on the year before. AM's letter also advises JT as to the steps to be taken if he wanted to dismiss A within the procedures and be seen to have followed the procedures.
    AM's advice to refer A to OHCS was not taken. AM's advice to have a further meeting with A was also not taken.

    G.   Smoking note placed on A's file

    On 24th June, KS placed a note on A's file to the effect that A had been seen in the company of two people smoking (p.866). KS did not discuss the matter With A nor tell him that he was making a file note. It is submitted that the only conceivable explanation for KS's behaviour is that he was building up material to use against A.

    H.   Final Warning for being late to work on 18th June

    On 18th June 1999, A's car broke down and he was unable to attend work. He rang his supervisor before his turn of duty started (p.844/5). He was charged with being absent from duty on 24th June (p.848). At a disciplinary hearing before KS (p.873-5) and an appeal before JT (p.920a-d), A was given a final warning and a reprimand. A makes the following points about the hearings:
    The charge was issued without any informal approach to A in accordance with the normal procedures.
    KS and JT accepted the entirety of A's account of the circumstances that prevented him from getting to work, yet found that "absence was absence", all employees have a "responsibility to get themselves to work" and a final warning was appropriate; it is submitted that as a matter of commonsense, a final warning (indeed any disciplinary action) was unwarranted and disproportionate.
    KS amended his statement to include evidence that he had also taken into account A's previous lateness due to car problems in October 1998. However, this evidence is not reflected in the hearing minutes. Further, KS admitted not informing A that he was taking into account an earlier instance. Further still, KS accepted that A could not have known that his car was going to break down.
    Comparison of A's case with other disciplinary cases reveals that A was treated exceedingly harshly23 both as to penalty and time taken for the hearings (20 minutes in both cases).

    I.   Reminder that A was at Stage 3

    On 21st September, A was absent from work due to sickness. On 10th October, A wrote the second report and left copies at Charing Cross station, where they came to the attention of CE24. On I5th October, CE wrote to A reminding him that he was on a final warning under MFA (p.927). A submits that this was in direct response to CE seeing A's report25. The MFA procedures contain provision for A to receive a "well done" letter (which he did not receive) but not for him to receive reminder letters when he was ill.

    J.   Final warning for the second report

    The second report caused "anger"26 at Friars Bridge after it was widely reported in the press. CE held an investigative interview on 22nd October. A disciplinary hearing was held by KS on 9th December.
    A makes the following criticisms of the investigative process:
    there was an initial discussion as to the plan of action between JT, KS (who did not recall the discussion) and CE, when there was an allocation of roles; no explanation has been given for why JT organised this27;
    the disciplinary procedure (p.965) contained no provision for an investigative interview;
    CE's evidence was that there would always be a disciplinary hearing. JT's evidence was that there would only be a disciplinary hearing according to the outcome of the investigative hearing;
    The investigative hearing (p.937-941) was unfair in that A was not given proper notice of the suspected offence, not permitted a union representative and not shown or told any contradictory evidence. Except for providing names of individuals, A (who was unprepared) answered all questions put by CE.
    JT claims to have deliberately removed himself from proceedings because of the appearance of bias. However, CE reported back to JT after the investigative interview (p.941).
    CE's indication to A that he would "investigate some more" and then report back (p. 941) was false; CE obtained no further information on this matter before A was charged (p.961).
    R claims that the charge was drawn up by CE, with JT adding a few elements to make it more coherent. It is submitted that the charge is entirely incoherent with no guidance as to where the alleged mischief is said to lie.
    A makes the following criticism of the disciplinary hearing:
    JT appointed KS to perform the disciplinary hearing because KS was "experienced" at carrying out the more complicated cases; it is submitted that analysis of KS' disastrous conduct of the hearing demonstrates that this could never have been the true reason for his appointment.
    A was not provided with any documentation upon which KS proposed to rely. Nor was it discussed with him. KS' evidence that he faxed the papers to GW after the hearing is, it is submitted, incapable of belief.
    KS' focus of the hearing was A's alleged release of the report to the press. This is not reflected in the charge, as was conceded by KS.
    Even if the charge did relate to dissemination to the press, it was not properly investigated - the relevant newspapers should have been contacted by R. That this was apparent to KS is reflected in the late addition to his statement to the effect that he consciously decided not to contact the newspapers. Further, KS was aware from the letter from Barry Oxendale (p.928) that the newspapers did not have A's contact details.
    KS' s evidence was that he thought A had passed it to the press. This does not reflect his findings at the hearing (p.985).
    Insofar as the charge was concerned, KS did not invite A to justify any of his report; nor was A challenged or contradicted in respect of any part of it. KS accepted that he was unable to say that any part of the report was "inaccurate".
    KS accepted that his 3 separate conclusions in relation to extracts from the report were "for the charge". It is submitted that he thereby meant that he was performing the formalities.
    KS's conclusions that certain matters were "opinion" not "fact" echo the conclusions of M. Bloomfield. Further, they demonstrate the degree to which criticism of R is silenced.
    The hearing took 15 minutes. KS took 25 minutes to consider what to do. It is submitted that the hearing was too short to do justice to the issues. It is further submitted that in the light of KS's approach to the hearing, he could not possibly have needed 25 minutes to reach a conclusion, and that during the adjournment he spoke to other individuals for advice/assistance/encouragement/instructions.
    After the hearing, KS telephoned JT with the result.
    JT was due to be the appeals officer (per KS).
    KS gave evidence that A would have to write some 5 reports before being dismissed, notwithstanding the damage that the reports caused R. It is submitted that this lenient approach is out of step with R's otherwise harsh approach to A and reflects the concern that R had in taking any kind of disciplinary action against A for writing reports.

    K.   Extension of Stage 3

    On 22nd December CE extended A's stage 3 until June 2000, notwithstanding the fact that A had been absent for just 2 days since September 199828. This was in clear breach of the procedures, which provide for automatic lapse of stage 3 if there is no further infringement (p.134) and do not provide for extension of a final warning.

    L.   Form 1 for 23rd November late train

    On 23rd November, A's train departed 8 minutes late through no fault of his own (p.970). He was charged with causing unnecessary lateness to a train on 22nd December. A has the following criticisms:
    JT was responsible for the bringing of this charge (p.969).
    The charge was brought almost 1 month after A reported back on the incident.
    A had previously been involved in a similar incident (p.682), where there were no repercussions.
    No other train driver has been charged with causing unnecessary delay to a train.
    The delay was trifling and the fault was not A's.

    M.   Health and Safety Functions

    Throughout this period, A was constantly ignored and obstructed in his efforts as H&S representative. A relies upon the treatment afforded to SH-Gas a comparator. A was obstructed as follows:
    He was not provided with facilities29 despite repeated requests30.
    He was not provided with paid time off31, despite repeated requests for such time32. He was only provided with time off to attend meetings and inspections. In a safety critical industry such as the railways, it is submitted that this was manifestly inadequate.
    He was not consulted in respect of any significant change33, despite repeated requests and complaints34.
    He was not provided with relevant information35, despite repeated requests36.
    It is submitted that R was in wholesale disregard of both the law and its own procedures insofar as A was concerned.
    Further, R failed to provide A with a safe place of work. It failed to take sufficient action in relation to local and general factors affecting A's safety.

    N.   Motive

    It is submitted that R had particular motivation to victimise/silence A: its safety procedures were wholly inadequate and R was unwilling to recognise many of A's complaints, particularly relating to SPADs.
    A relies on the following in support of the proposition that R's procedures in relation to fatigue/SPADs was inadequate.
    DRI was accepted without the question of safety being put before the union members (p.234).
    R committed to producing a guide to fatigue at the time of DRI - it was not produced until late 2000 or early 2001 despite continued commitments to HMRI that it would be produced soon37.
    The HMRI drivers' survey of November 1997 (p.505/6) was not discussed in Joint Council although the conclusions were discussed with R.
    R told HMRl that it had commissioned research from Circadian (p.505); the research was jettisoned on the grounds of cost (p.800); no trace of any of the Circadian presentations to R remains.
    The replacement research from Halcrow Transport resulted in a delay of one year before an action plan was produced (p.978).
    R increased its use of MFA in order to encourage drivers to come to work (p.799).
    H&S representatives did not sit on the SPAD working group, whose minutes were not publicised (p.798).
    H&S representatives were not given access to completed SPAD forms; A did not see his first blank SPAD form until June 1999 (p.865) and did not obtain a copy until October 1999.
    The SPAD group suffers from a lack of critical analysis (p.885-91)
    The only SPAD form available to the Tribunal shows signs that fatigue was not notified as a possible cause to Railtrack despite the driver's vehemence that the SPAD was fatigue-related.
    Despite A's constant campaIgn for increased research into fatigue/SPADs, nobody at R ever approached him in connection with the issue or asked him to explain the reports.
    Despite the scientific and anecdotal evidence linking fatigue with accidents, R maintained that there is no link and that its drivers do not fall asleep: pp.324, 326, 328, 330, 333. R's press releases have either been false or misleading.
    It is submitted that R had every interest in seeking to silence A since he threatened to expose R' s complacent approach to safety issues.
    13 See p.65: the MFA procedure "is designed to.....5. Complement BR's policy on excessive working hours arising from the Hidden Report Recommendations".
    14 Lateness and absence are not covered by the MFA procedure: p.128.
    15 See p.68: "DON'T automatically initiate formal action against employees who appear on the Attendance Pattern report. Consider each case objectively."
    16 They were early morning trains (0433 and 0531) whose delays were made up by the time that they reached the first stations.
    17 Mr Worboys (unavailable for xx) states that he has represented other drivers facing disciplinary charges for lateness. He does not specify whether those drivers were employees of R or of other TOCs.
    18 See footnote 22 for comparative examples of SG's usual disciplinary approach.
    19 Mr Ridd cross-exarnined A on the basis that "JT told [him] that [he] had caused a lot of trouble at head office".
    20 JT's initial evidence that D.Martin (Safety Standards) was involved in the report is incorrect.
    21 The covering letter is at p.792.
    22 It is noticeable that KS was not copied in on the correspondence.
    [name withheld] (R1)
    Admitted 2 charges of being absent from duty and falsely claiming sick pay for both days, with no mitigation. Total hearing time: 1hr 45m.
    Disciplinary               suspension and a final warning
    [name withheld] (R2)
    Leave was refused, but B went AWOL anyway; admitted 1 charge of being AWOL and also refusing to carry out instructions. Hearing time: 1hr 15m.
    Severe reprimand
    [name withheld] (R3)
    Leave was refused, but F went AWOL anyway; admitted 1 charge of being AWOL.
    Severe reprimand
    [name withheld] (R6)
    Admitted charges of being deliberately AWOL for 3 days; hearing at least 2 hours long.
    Final warning and reprimand
    [name withheld] (R9)
    Overslept leading to 1 cancelled train. Gollop was hearing officer.
    [name withheld] (R10)
    Overslept; already on a warning for lateness; Gollop was hearing officer.

    24 His evidence was that he was at Charing Cross every day and the report was pointed out to him.
    25 It should be noted that the report had not reached the press by this stage. It indicates that R was prepared to quash internal dissent as well.
    26 Evidence of JT.
    27 The disciplinary procedure at p.965 provides for full authority to be delegated to the local manager for the administration of the disciplinary procedure save in certain specified cases which do not apply to this case (para. 12).
    28 See A's absence printout on p.967. It does not take account of one further [sic]
    29 1977 Regulations, r.4A(2); 1996 Safety Procedures, para.22 (p.52).
    30 See e.g. pp.382, 512-9, 914.
    31 1977 Regulations, r.4(2); 1996 Safety Procedures, para.24 (p.52).
    32 See e.g. pp.407, 442, 445, 701, 869 and 1003 (ASLEF complaint about their representatives not having time off).
    33 1974 HaSaW Act, s.2(6).
    34 See e.g. pp.346, 376, 379, 434, 512-519, 524b, 526, 527
    35 1977 Regulations, r.7; 1996 Safety Procedures, para.23 (p.52).
    36 See e.g. pp.436, 512-9, 523, 604, 782, 850, 869/70
    37 See pp.791

    [A = Applicant = Mr L Holden
    R = Respondent = Connex South-Eastern
    KS = Mr Ken Skilton
    CE = Mr Chris Edmunds
    SG = Mr Steven Gollop
    AM = Mr Andrew Meadows
    SH-G = Mr Stephen Higham-Gray
    JT = Mr John Thompson]

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