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8.

ERA, s.103A provides that:

" An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure."

9.

A will rely upon the reports sent to HMRI and other parties on 14^th January and 10^th October 1999 as being the protected disclosures. A disclosure made before the commencement of the Act may nonetheless be a protected disclosure: Miklaszewicz v. Stolt Offshore Ltd⁶; Edgar v. The Met Office⁷. A also claims that the disclosures are protected under s.43F, s.43G and s.43H.

"WORKER"

10.

As an employee of R, A is clearly within the definition of "worker" as set out in ERA s.43K. A does not understand R's argument that he falls outside the extended definition of "worker" for the purposes of the whistleblowing legislation (ERA, s.43K).

"QUALIFYING DISCLOSURE"

11.

ERA, s.43B(1) provides:

"In this Part a "qualifying disclosure" means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following-

(a)

that a criminal offence has been committed, is being committed or is likely to be committed,

(b)

that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

(c)

(d)

that the health or safety of any individual has been, is being or is likely to be endangered,

(e)

(f)

that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed."

R accepts that the disclosures comply with the requirements of subsections (a), (b) and (d)⁸. A submits that the disclosures also comply with subsection (f)⁹.

DISCLOSURE TO A PRESCRIBED PERSON

12.

ERA,s.43F(1) establishes that:

"A qualifying disclosure is made in accordance with this section if the worker-

(a)

makes the disclosure in good faith to a person prescribed by an order made by the Secretary of State for the purposes of this section, and

(b)

reasonably believes-

(i)

that the relevant failure falls within any description of matters in respect of which that person is so prescribed, and

(ii)

that the information disclosed, and any aIlegation contained in it, are substantially true."

R concedes that A's reports fall within s.43F(1) insofar as they were addressed to HMRI^1O. A assumes that the same is true for the report sent to the Principal Inspecting Officer of Railways.

13.

It is submitted that insofar as the reports were distributed to the Office of Rail Franchising (p.784) and OPRAF (p.924), they were distributed to prescribed persons. Both bodies are established by legislation and are performing functions relating to the "provision and supply of railway services" (see PID(PP)O 1999, Schedule), a role designed for the Rail Regulator, a specified prescribed person. It is further submitted that Lord Cullen is a prescribed person. He was appointed on 8th October 1999 by the Health and Safety Commission to conduct a public inquiry under s.14(2)(b) of the Health and Safety at Work Act 1974.

GOOD FAITH

14.

Without prejudice to the contention that it is for R to show that A acted in bad faith, it is submitted that both of A's qualifying disclosures were made in good faith. The Tribunal is invited to consider the following:

(a)

A had been heavily involved in H&S, including writing to HMRI, before R existed.

(b)

A continued writing to R and to ASLEF in respect of H&S issues after his resignation.

(c)

The nature of A's representations to R and other bodies over the years provides strong support for the proposition that A has always had safety as his first priority.

(d)

The ET is respectfully invited to consider the manner in which A gave his evidence. KS, GW and SH-G accepted that A's safety concerns were genuine.

(e)

If R genuinely thought that A had acted in bad faith, it would justifiably have disciplined him more severely. Prior to the issue of these proceedings, R had not claimed that A had acted in bad faith.

(f)

Whilst some of A's language in the reports was immoderate, it was no more immoderate than many of the representations made by A to R over the years. Further, A was justified in using immoderate language - the lack of any kind of meaningful response from R or indication that it took H&S issues seriously resulted in A's frustration being increased.

FAILURE FALLS WITHIN REMIT OF PRESCRIBED PERSON

15.

HMRI is a subdivision of the Health and Safety Executive, a prescribed person¹¹. It is concerned with matters of railway safety. The disclosures plainly fall within HMRI's remit given that they concern matters of railway safety.

REASONABLE BELIEF THAT MATERIAL WAS SUBSTANTIALLY TRUE

16.

Without prejudice to the contention that it is for R to demonstrate that A did not have a reasonable belief that the disclosure was substantially true, it is submitted that both reports contained material that A reasonably believed to be substantially true.

17.

The January report (p. 781) contained the following allegations:

(a)

There had been an increase in SPADs since DRI. This is accepted by R (see p.798).

(b)

Metro (CSE) had the worst SPAD rate in Britain. Whilst this is not agreed by R nor by HMRI, there are different ways of calculating the SPAD tables.

(c)

There was inadequate access to the SPAD group. Despite multiple requests (p.850; 870), minutes were not widely distributed (p.798).

(d)

Rest breaks for drivers were inadequate on some turns. This is self-explanatory.

(e)

R was failing to provide documentation relating to risk assessment and monitoring of fatigue. The risk assessment was only disclosed this year. No information as to R's monitoring of fatigue has ever been disclosed.

(f)

Drivers complaining of fatigue were being intimidated. JT accepted that one of the aims of the MFA system was to "encourage" people not [to] be absent, for any reason. In fact, the system was capable of being triggered very easily, intimidating drivers into coming into work despite tiredness.

(g)

R had failed to disclose information relating to Circadian Technologies. This request for information has only been answered at all in November, when it emerged, for the first time, that despite giving a number of presentations to R, Circadian had not produced a report.

(h)

Problems with DOO radio and CCTV. Accepted by R (p.800).

(i)

R had failed to fit air conditioning units in train cabs. R initially committed to providing these by 1997 (p.367); this was postponed to 1999 (p.660b); in the event, even this was not done (p.800).

(j)

There had been an increase in assaults on train drivers since the introduction of driver-only trains. Not disputed by R (p.800).

(k)

There were problems with wheel slip and adhesion.

18.

The October report contained the following additional allegations:

(a)

R implemented cuts in training. The minimum was reduced from 390 hours to 225 (p.937).

(b)

SPADs being caused by fatigue. Accepted by R (p.797/8). A's own experience and conversations with drivers confirmed this to him.

(c)

Refusal to allow A a copy of a SPAD form. A's oral evidence was not contradicted by other evidence.

(d)

Increase in contested SPADs. Not disputed and not controversial.

(e)

The HMRI had a "wait and see" policy in relation to investigating fatigue. This is not relevant for the purpose of this case.

(f)

Increased intimidation and bullying. A's access to anecdotal evidence was unparalleled. He could draw on his own experiences. The TSSA report (p.244) supports A's position, as do contemporaneous newspaper reports and more recent trade union literature.

19.

In relation to all of the above matters, A further relies on the almost complete absence of challenge or contradictory evidence to A's claims, either when he was employed or at Tribunal. Such challenge as there was to A's claims concentrated on his methodology and lack of supporting documentary evidence.

DISCLOSURE IN OTHER CIRCUMSTANCES

20.

ERA, s.43G(1) provides for protected disclosures in different circumstances i.e. to persons other than prescribed persons:

"(1) A qualifying disclosure is made in accordance with this section if -

(a)

the worker makes the disclosure in good faith,

(b)

he reasonably believes that the information disclosed, and any allegation contained in it, are substantially true,

(c)

he does not make the disclosure for purposes of personal gain,

(d)

any of the conditions in subsection (2) is met, and

(e)

in all the circumstances of the case, it is reasonable for him to make the disclosure."

The only relevant condition in subsection (2) is that the worker has previously made a disclosure of substantially the same information to his employer or to a prescribed person.

21.

The Tribunal is respectfully referred to paragraphs 14 and 16 - 19, for A's submissions as to good faith and reasonable belief/substantial truth.

22.

It is submitted that there is no evidence that A received any personal gain from the disclosure, let alone that personal gain was his incentive. It is submitted that the Tribunal is in an excellent position to adjudicate upon A's motive for making disclosures.

23.

It is submitted that subsection 1(d) is fulfilled: "substantially the same information" had already been disclosed to both R and to HMRI in earlier reports.

24.

In determining whether the disclosure was reasonable, the Tribunal must have regard to the provisions of s.43G(3):

"(a)

the identity of the person to whom the disclosure is made,

(b)

the seriousness of the relevant failure,

(c)

whether the relevant failure is continuing or is likely to occur in the future,

(d)

whether the disclosure is made in breach of a duty of confidentiality owed by the employer to any other person,

(e)

In a case falling within subsection(2)(c)(i) or (ii) (i.e. substantially the same information previously disclosed to employer or prescribed person), any action which the employer or the person to whom the previous disclosure in accordance with section 43F was made has taken or might reasonably be expected to have taken as a result of the previous disclosure, and

(f)

in a case falling within subsection (2)(c)(i), whether in making the disclosure to the employer the worker complied with any procedure whose use by him was authorised by the employer."

25.

It is submitted that the disclosures to the non-prescribed persons were clearly reasonable having regard to the factors set out in the preceding paragraph. The disclosures were made to a very small number of highly influential individuals within the transport industry, the concerns raised by A were very serious and continuing, there was no breach of confidence, and R had not shown the slightest interest in taking any remedial or monitoring action in response to earlier disclosures.

DISCLOSURE OF EXCEPTIONALLY SERIOUS FAlLURE

26.

ERA, s.43H(1) provides that:

"A qualifying disclosure is made in accordance with this section if -

(a)

the worker makes the disclosure in good faith,

(b)

he reasonably believes that the information disclosed, and any allegation contained in it, are substantially true,

(c)

he does not make the disclosure for purposes of personal gain,

(d)

the relevant failure is of an exceptionally serious nature, and

(e)

in all the circumstances of the case, it is reasonable for him to make the disclosure.¹²"

27.

All of the above factors save (d) have already been addressed. It is submitted that (d) is satisfied in this case: the failures referred to by A related to serious safety matters about public transport. Any accident as a result of the failures identified by A could result in multiple fatalities. lt is submitted that such failures must be "exceptionally serious"

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 ⁶ [2001] IRLR 656 EAT.
 ⁷ Unreported, 2001, EAT.
 ⁸ P.18 (IT3, para. 14(ii)).
 ⁹ A's claim of doctored loss control reports falls within this subsection.
¹⁰ P.18 (IT3, para.14(iv)).
¹¹ See the Public Interest Disclosure (Prescribed Persons) Order 1999.
¹² The only particularised factor to take into account when determining reasonableness under s.43H is the identity of the person to whom the disclosure is made (s.43H(2)).

[A = Applicant = Mr L Holden
R = Respondent = Connex South-Eastern
KS = Mr Ken Skilton
GW = Mr Graham Walker
SH-G = Mr Stephen Higham-Gray
JT = Mr John Thompson]


Holden verses Connex South Eastern > Closing Submissions > Section 28 Victimization