Burchell Test (Law)
The following paragraph is what Judge Burton said at number 16 in his written reasons.
"We have applied the well known British Home Stores v Burchell test. There was no issue in terms of the respondent’s reasonable belief or in terms of investigation because Mr Webb freely admitted to what he had done. The only issue therefore which we have to consider is whether dismissal was within the band of reasonable responses".
So according to Judge Burton I freely admitted that I was guilty of these 3 charges:-
1. Failed to follow the correct procedure for reporting a defective warning horn.
I would like to know how he could possibly come to this assumption, I never freely admitted that I was guilty of this (one glove fits all) charge.
2. Failed to follow the correct procedure for reporting a near miss incident.
Again, where is his evidence that I freely admitted I never carried out this supposed procedure?
3. Failed to follow the correct procedure for reporting unit defects.
Please show me where I freely admitted I never carried out this supposed procedure.
The only issue I freely admitted was that the written near miss comment didn't occur. The Investigation was called, "False allegation of a near miss incident on a unit defect slip".
The only times the "false allegation" was mentioned in the written reasons are below.
8. That Defect Report Form was subsequently found. Not only did it report these three faults it
also made a wholly false allegation that there had been a near miss of a track-side worker. That lead to an urgent investigation being made.
9. The respondent took the view that Mr Webb had committed a disciplinary offence. He had failed to follow the rule book in relation to stopping his train and reporting the fault in relation to the horn and he had at the very least attempted to make a false statement in relation to this near
miss.
12. He readily admitted that the alleged near miss was a lie designed to make the Respondents sit up and take note.
(This is true, I had been IGNORED for years on this issue, report after report IGNORED, when I took previous non related issues to the Office of the Rail Regulator, TransPennine Express management blatantly LIED and accused me of not reporting the issues to them first. What I wrote was something that could quite easily become reality and is a time bomb waiting to explode, I wanted them to understand the seriousness of the situation.)
13. He did not express remorse for having told this lie on the defect report sheet.
According to Judge Burton the main reason for my dismissal was for not following procedures, as I have shown in the section on his written reasons, Judge Burton did not understand the rules, he became totally fooled by the LIES of Mark Atkinson.
"We have applied the well known British Home Stores v Burchell test. There was no issue in terms of the respondent’s reasonable belief or in terms of investigation because Mr Webb freely admitted to what he had done. The only issue therefore which we have to consider is whether dismissal was within the band of reasonable responses".
So according to Judge Burton I freely admitted that I was guilty of these 3 charges:-
1. Failed to follow the correct procedure for reporting a defective warning horn.
I would like to know how he could possibly come to this assumption, I never freely admitted that I was guilty of this (one glove fits all) charge.
2. Failed to follow the correct procedure for reporting a near miss incident.
Again, where is his evidence that I freely admitted I never carried out this supposed procedure?
3. Failed to follow the correct procedure for reporting unit defects.
Please show me where I freely admitted I never carried out this supposed procedure.
The only issue I freely admitted was that the written near miss comment didn't occur. The Investigation was called, "False allegation of a near miss incident on a unit defect slip".
The only times the "false allegation" was mentioned in the written reasons are below.
8. That Defect Report Form was subsequently found. Not only did it report these three faults it
also made a wholly false allegation that there had been a near miss of a track-side worker. That lead to an urgent investigation being made.
9. The respondent took the view that Mr Webb had committed a disciplinary offence. He had failed to follow the rule book in relation to stopping his train and reporting the fault in relation to the horn and he had at the very least attempted to make a false statement in relation to this near
miss.
12. He readily admitted that the alleged near miss was a lie designed to make the Respondents sit up and take note.
(This is true, I had been IGNORED for years on this issue, report after report IGNORED, when I took previous non related issues to the Office of the Rail Regulator, TransPennine Express management blatantly LIED and accused me of not reporting the issues to them first. What I wrote was something that could quite easily become reality and is a time bomb waiting to explode, I wanted them to understand the seriousness of the situation.)
13. He did not express remorse for having told this lie on the defect report sheet.
According to Judge Burton the main reason for my dismissal was for not following procedures, as I have shown in the section on his written reasons, Judge Burton did not understand the rules, he became totally fooled by the LIES of Mark Atkinson.
I appealed against the decision of Route Driver Manager Mark Atkinson that the charges should never have amounted to gross misconduct and that evidence I produced at my hearing was not taken into account.
The 3 charges:
Charge 1: On Wednesday 14th January you failed to follow the correct procedure for reporting a defective warning horn.
Charge 2: You also failed to follow the correct procedure for reporting a near miss incident, resulting in the train being taken out of service. You subsequently admitted that this was a false allegation.
Charge 3: You failed to follow the correct procedure for reporting unit defects.
The 3 charges:
Charge 1: On Wednesday 14th January you failed to follow the correct procedure for reporting a defective warning horn.
Charge 2: You also failed to follow the correct procedure for reporting a near miss incident, resulting in the train being taken out of service. You subsequently admitted that this was a false allegation.
Charge 3: You failed to follow the correct procedure for reporting unit defects.
The Burchell Test
British Home Stores v Burchell [1978] IRLR 379
To establish fairness in dismissal, the employer must demonstrate:
1. Belief employee is guilty of misconduct
2. Belief based upon reasonable grounds; and
3. At the time of belief, it carried out as much investigation as reasonable
ISSUES ON THE RESPONDENTS BELIEF AND THE INVESTIGATION
Paul Watson, Mark Atkinson and Charlotte Mayne know deep down inside how lucky they were that day, especially Mark Atkinson, the very first question I asked this man in that tribunal was,
"on the day in question, what type of warning horn failure did my train have"? I will never forget the way Mark Atkinson went bright red and started to perspire profusely, fumble his way through some paperwork in front of him and couldn't respond with any answer, straight away this should have been all the proof those judges required to see that TPE had just failed the Burchell Test:-
1. that they held a genuine belief the employee was guilty of the alleged misconduct.
2. that the genuine belief is based on reasonable grounds, and
3. the grounds for holding that belief were established after an investigation that
was reasonable in all the circumstances of the case.
Mark Atkinson never gave any type of answer whatsoever, so clearly he couldn't possibly have had (1) a genuine belief, because (2) he didn't have reasonable grounds despite the very fact that he took my hearing and he found me guilty of failing to report a defective warning horn, which amazingly was not based on any evidence supplied from the investigation! Lets not forget, Mark Atkinson took my hearing and supplemented his own idea's on what happened that January morning, would you call that "reasonable grounds"?
Yet now in this tribunal he cannot answer what should be a very basic answer if he had a genuine belief that I was guilty regarding what type of failure the warning horn had that morning. This was the most fundamental issue surrounding my dismissal and he cannot answer. This was because (3) the investigation was not reasonable in backing up the charges they laid against me, it never ascertained key information regarding procedures allegedly broken , this is Route Driver Manager Mark Atkinson failing the Burchell test on all 3 counts miserably.
This is where Stephen Percival would also fail the Burchell Test. "Reasonable grounds" would have been an investigation that specifically set out to charge me with failing to report either a partially defective or complete warning horn failure. Despite being interviewed twice by manager Stephen Percival he never once asked about or mentioned the behaviour of the warning horn. If he had specifically asked me about the warning horn and then decided I failed to follow a reporting procedure you could possibly accept that he held a "genuine belief".
Furthermore:- Looking at the only alleged non-compliance of this whole investigation which was deemed by Stephen Percival to be, "NOT FOLLOWING THE CORRECT REPORTING PROCEDURE". As shown below.
(1*) "By not following the correct reporting procedure the driver allowed the unit to remain in
traffic".
How can it be "reasonable grounds" or having a "genuine belief" (1*) when you fail to identify the precise reporting procedure I didn't allegedly follow, all that was required was the rule book prefix. IT IS BECAUSE HE DIDN'T KNOW!
Lets remember that if I had managed to contact control and report the partially defective warning horn, TransPennine Express contingency plans would have allowed that train to remain in service and run at speeds up to 100mph until the end of its diagrammed work. Is it therefore really worthy of a gross misconduct charge?
(2*) "with faults that he believed to be serious and potentially capable of contributing to a safety of the line incident".
(2*) And then you have to rely on the beliefs of the very person you are charging and not your own belief from your own investigatory findings?
My beliefs mean nothing, THEY WERE ALWAYS TOTALLY IGNORED, unless they are used as a weapon against me, I have complained since introduction about the class 185 units and warning horn, wipers and noise problems, but who cares?
Yet all of this passed the Burchell Test in their favour! Great British Justice at its best!
HOW CAN THREE JUDGES IGNORE THIS UNLESS LIKE I BELIEVE, THEY ARE ALL CORRUPT.
Other precedents in law that should have been taken into consideration
Strouthos v London Underground Ltd [2004] IRLR636 CA.
"It is a basic proposition in internal proceedings that a charge against an employee facing dismissal should be precisely framed and the evidence should be confined to the particulars given in the charge".
Look at my 3 charges, not one of them was "precisely framed".
There is no evidence to back up the 3 charges because Stephen Percival was too pre-occupied with a character assassination.
Wakefield& Pontefract Community NHS v Mr Armstrong
Investigation flawed: “It was asserted that he was only interested in finding out material that pointed to his guilt and did not take account of points which were favourable to his case”.
Stephen Percivals investigation report was nothing more than a character assassination that was written with malice to try and discredit me in any way possible even using issues that were totally irrelevant to the events of that fateful morning because they made me look bad. It would be an under statement to say this investigation was flawed!
What does the following taken from Stephen Percivals Investigation Report have to do with the events of the 14th January 2009?
5.8: "The driver has a long standing and recorded history of submitting reports containing sarcastic and derogatory comments etc".
5.12: "The driver was involved in the following recent incidents".
"Thursday 27/11/08 - Refusal to take 5P69 through the wash plant at the Leeman Road Depot due to allegations about strong smells".
"Tuesday 25/11/08 - Allegations of a traction unit being left unattended at the inbound stop board of the Leeman Road Depot".
The above isn't even material that pointed to my guilt, but information clearly designed to put a slur on my character, what you have to ask yourself is, if what I did was that bad that it deserved a charge of gross misconduct they wouldn't need to stoop this low in attacking my character, all they needed to do was supply the evidence.
Taylor v Parsons Peebles nei Bruce Peebles Ltd [1981] IRLR 119
"That usually an employer to act reasonably must take into account a long period of service and good conduct. Here the Appellants on the findings of the Industrial Tribunal did not do so".
Neither did TPE, this was never mentioned.
YORKSHIRE RIDER LTD APPELLANT - MR F T NECKLES RESPONDENT
"The Tribunal rejected the Applicant's contention that he was dismissed for a health and safety reason. Accordingly the claim of automatically unfair dismissal under Section 100 ERA failed. As to ordinary unfair dismissal, they found that the Applicant was dismissed for a potentially fair reason relating to his conduct, but went on to conclude that that dismissal was unfair under Section 98(4) ERA. Their reasons for reaching that conclusion appear to have related to:
(iii) Treating the accumulated offences as amounting to gross misconduct justifying dismissal. The Tribunal found that a prompt disciplinary procedure leading to an appropriate sanction for the first offence might have led to an improvement in the Applicant's conduct which may have meant that he would not have committed further offences leading to his eventual dismissal".
"on the day in question, what type of warning horn failure did my train have"? I will never forget the way Mark Atkinson went bright red and started to perspire profusely, fumble his way through some paperwork in front of him and couldn't respond with any answer, straight away this should have been all the proof those judges required to see that TPE had just failed the Burchell Test:-
1. that they held a genuine belief the employee was guilty of the alleged misconduct.
2. that the genuine belief is based on reasonable grounds, and
3. the grounds for holding that belief were established after an investigation that
was reasonable in all the circumstances of the case.
Mark Atkinson never gave any type of answer whatsoever, so clearly he couldn't possibly have had (1) a genuine belief, because (2) he didn't have reasonable grounds despite the very fact that he took my hearing and he found me guilty of failing to report a defective warning horn, which amazingly was not based on any evidence supplied from the investigation! Lets not forget, Mark Atkinson took my hearing and supplemented his own idea's on what happened that January morning, would you call that "reasonable grounds"?
Yet now in this tribunal he cannot answer what should be a very basic answer if he had a genuine belief that I was guilty regarding what type of failure the warning horn had that morning. This was the most fundamental issue surrounding my dismissal and he cannot answer. This was because (3) the investigation was not reasonable in backing up the charges they laid against me, it never ascertained key information regarding procedures allegedly broken , this is Route Driver Manager Mark Atkinson failing the Burchell test on all 3 counts miserably.
This is where Stephen Percival would also fail the Burchell Test. "Reasonable grounds" would have been an investigation that specifically set out to charge me with failing to report either a partially defective or complete warning horn failure. Despite being interviewed twice by manager Stephen Percival he never once asked about or mentioned the behaviour of the warning horn. If he had specifically asked me about the warning horn and then decided I failed to follow a reporting procedure you could possibly accept that he held a "genuine belief".
Furthermore:- Looking at the only alleged non-compliance of this whole investigation which was deemed by Stephen Percival to be, "NOT FOLLOWING THE CORRECT REPORTING PROCEDURE". As shown below.
(1*) "By not following the correct reporting procedure the driver allowed the unit to remain in
traffic".
How can it be "reasonable grounds" or having a "genuine belief" (1*) when you fail to identify the precise reporting procedure I didn't allegedly follow, all that was required was the rule book prefix. IT IS BECAUSE HE DIDN'T KNOW!
Lets remember that if I had managed to contact control and report the partially defective warning horn, TransPennine Express contingency plans would have allowed that train to remain in service and run at speeds up to 100mph until the end of its diagrammed work. Is it therefore really worthy of a gross misconduct charge?
(2*) "with faults that he believed to be serious and potentially capable of contributing to a safety of the line incident".
(2*) And then you have to rely on the beliefs of the very person you are charging and not your own belief from your own investigatory findings?
My beliefs mean nothing, THEY WERE ALWAYS TOTALLY IGNORED, unless they are used as a weapon against me, I have complained since introduction about the class 185 units and warning horn, wipers and noise problems, but who cares?
Yet all of this passed the Burchell Test in their favour! Great British Justice at its best!
HOW CAN THREE JUDGES IGNORE THIS UNLESS LIKE I BELIEVE, THEY ARE ALL CORRUPT.
Other precedents in law that should have been taken into consideration
Strouthos v London Underground Ltd [2004] IRLR636 CA.
"It is a basic proposition in internal proceedings that a charge against an employee facing dismissal should be precisely framed and the evidence should be confined to the particulars given in the charge".
Look at my 3 charges, not one of them was "precisely framed".
There is no evidence to back up the 3 charges because Stephen Percival was too pre-occupied with a character assassination.
Wakefield& Pontefract Community NHS v Mr Armstrong
Investigation flawed: “It was asserted that he was only interested in finding out material that pointed to his guilt and did not take account of points which were favourable to his case”.
Stephen Percivals investigation report was nothing more than a character assassination that was written with malice to try and discredit me in any way possible even using issues that were totally irrelevant to the events of that fateful morning because they made me look bad. It would be an under statement to say this investigation was flawed!
What does the following taken from Stephen Percivals Investigation Report have to do with the events of the 14th January 2009?
5.8: "The driver has a long standing and recorded history of submitting reports containing sarcastic and derogatory comments etc".
5.12: "The driver was involved in the following recent incidents".
"Thursday 27/11/08 - Refusal to take 5P69 through the wash plant at the Leeman Road Depot due to allegations about strong smells".
"Tuesday 25/11/08 - Allegations of a traction unit being left unattended at the inbound stop board of the Leeman Road Depot".
The above isn't even material that pointed to my guilt, but information clearly designed to put a slur on my character, what you have to ask yourself is, if what I did was that bad that it deserved a charge of gross misconduct they wouldn't need to stoop this low in attacking my character, all they needed to do was supply the evidence.
Taylor v Parsons Peebles nei Bruce Peebles Ltd [1981] IRLR 119
"That usually an employer to act reasonably must take into account a long period of service and good conduct. Here the Appellants on the findings of the Industrial Tribunal did not do so".
Neither did TPE, this was never mentioned.
YORKSHIRE RIDER LTD APPELLANT - MR F T NECKLES RESPONDENT
"The Tribunal rejected the Applicant's contention that he was dismissed for a health and safety reason. Accordingly the claim of automatically unfair dismissal under Section 100 ERA failed. As to ordinary unfair dismissal, they found that the Applicant was dismissed for a potentially fair reason relating to his conduct, but went on to conclude that that dismissal was unfair under Section 98(4) ERA. Their reasons for reaching that conclusion appear to have related to:
(iii) Treating the accumulated offences as amounting to gross misconduct justifying dismissal. The Tribunal found that a prompt disciplinary procedure leading to an appropriate sanction for the first offence might have led to an improvement in the Applicant's conduct which may have meant that he would not have committed further offences leading to his eventual dismissal".
Judge Burton's words below
17. "An employee who accepts what he had done wrong, who expresses remorse, who expresses a willingness to learn his lesson is an employee who may escape with a warning. As Mr Robinson submits all the indications that were given to the respondent by Mr Webb and by his trade union
representation in the course both of the disciplinary hearing and the appeal hearing was that he believed his actions were justified. He still believes his actions were justified".
All TPE procedures including the Blue Book were totally bypassed, there was only one clear goal for TPE and that was to dismiss me. I only behaved that morning with the train defects exactly how I always did, previous reports I had put in were the utmost proof of this, I was never given any indication that I was doing wrong, therefore how could I show remorse? Not forgetting that every other driver behaved the same way!
When you are constantly ignored like I was, if there is no dialogue, no on-going training how can you prove yourself with a willingness to learn? LETS FACE REALITY, WHAT REALISTIC CHANCE DID I HAVE?
Lock v Cardiff Railway Company Ltd [1998] IRLR 353,
"Morrison J presiding. He refers to the absence of reference by this Employment Tribunal at paragraph 8 of the ACAS Code of Practice, which provides:
"Employees should be made aware of the likely consequences of breaking rules and in particular they should be given a clear indication of the type of conduct which may warrant summary dismissal."
Nobody but nobody could believe that even if I was guilty, that an apparent failure to report a partially defective warning using the correct procedure could be classed as gross misconduct and become a dismissal offence.
“It is right to say that the precise offence for which the Appellant's was dismissed does not appear in the examples of gross misconduct which may lead to a summary dismissal in this employer's disciplinary procedure”.
The above is exactly the same for TPE, even if I was guilty, when has a failure to report a partially defective warning horn ever been classed as gross misconduct?
"It will be observed at once that nowhere have the employers spelt out the likely consequences to an employee of breaking rules, other than in a general sense. In particular, they have failed to give a clear indication of which type of conduct may warrant summary dismissal. It is not specified in the disciplinary Code which offences could be described as gross for which a first
breach would justify the disciplinary sanction of dismissal".
The whole world and his dog know my alleged conduct was not a dismissal offence.
"It seems to us essential that employees should be given due warning of which types of
misconduct will, on a first breach, lead to dismissal. They are entitled to know before they are dismissed what they may be in for if they break that particular rule. It seems to us to be no answer to say that this was an agreed Code and that Mr Lock's agent, his union, made the agreement, because, as it seems to us, the union cannot be taken on Mr Lock's behalf to have agreed that any one-off breach of any one of the rules set out in 15.1 would thereby justify a dismissal for gross misconduct. It is clear from paragraph 16 that any breach of any of those rules might have led to action short of dismissal. It seems to us that the fact that the unions may have agreed to a Code, does not deprive Mr Lock of the benefit of good industrial relations practices".
Everyone on the railway knows full well that even if I was guilty of the alleged failing to report train defects this does not warrant dismissal for a first offence, otherwise as my website shows, TPE would have had to dismiss numerous other drivers for the same offence. So the question is, why was I the only one dismissed? What did happen to EQUITY in the eyes of the law? Only Judge Burton can answer that.
The above examples are only a few of the examples available, Judge Burton was ignorant of the very law he is supposed to uphold, so as anyone can see, it is not only TPE that I have to battle with but the whole corrupt judicial system, but battle I will until the day I get JUSTICE.
Judge Burton and the whole Judicial system are a disgrace, there was an air of pompous arrogance throughout my tribunal, only Judge Burton knows why he wouldn't let me read out my witness statement, the same arrogance and rudeness towards me is evident to this very day, my personal thoughts are that they are as corrupt as hell, there is simply no chance of a fair hearing if you represent yourself, you are looked down upon as being a pauper, you are treated with utter contempt, thankfully though, I wasn't sent to the workhouse afterwards.
This is a fine example of Great British Justice.
As for luck, lets never forget, luck eventually runs out for everyone.
FURTHER EVIDENCE
Further evidence to support my argument on the "Burchell Test" precedent is as follows from my initial first interview to my hearing with Route Driver Manager Mark Atkinson.
It is regarding the only reason for my dismissal that came from the Employment Tribunal findings of:- "A failure to follow the correct reporting procedure for a defective warning horn".
Below is what information was found and mentioned specifically regarding the warning horn that morning.
Investigatory Interview 1: (Never once asked about the behaviour of the warning horn).
I stated: "The unit was very noisy and draughty and the wipers and warning horn did not work correctly".
Investigatory Interview 2: (Never once asked about the behaviour of the warning horn).
I stated: "thought that it might be cold enough to cause freezing problems with the horn".
I stated: "mentioned that he had had faults with warning horns and wipers in the past".
Investigation Report: (No mention of the type of warning horn failure).
"The driver believed that temperatures might have been sufficiently low enough to cause freezing problems with the warning horn, although this was disputed by the FTPE technical engineering manager".
"At 00.30hrs control were advised by staff at Ardwick TMD that a defect slip had been found on 185119 detailing three faults and making safety allegations against the unit. The defect slip listed the following faults:
1. Noise and draught through drivers side drop down window, excessive cab noise.
2. Windscreen wiper.
3. Warning horn".
"Investigation by depot staff revealed the following:- Warning horn - the horn was tested and found to be fully operational".
"A review of the units history (as far back as period 4) confirmed that there had not been any reports of cab noise or horn failure".
Charges Letter: Please note, the charge below supposedly came from the information above. It did not contain reference to which rule was supposedly broken, a rule book prefix was required.
But looking at the information regarding the warning horn above, how could Barry Cook come up with this charge?
1. "On Wednesday 14th January you failed to follow the correct procedure for reporting a defective warning horn"
Hearing: Please note from the above information the following is Mark Atkinson's interpretation.
MA: Said in relation to the charges, “You failed to follow the correct procedure for reporting a defective warning horn. That in mind”,
1. "You didn`t stop and report it at the controlling signaller".
2. "You didn’t report it to the train operating control".
3. "No point did you reduce the train speed".
4. "You did not complete the repair book procedure correctly".
As anyone can see if someone has a "genuine belief" based on "reasonable grounds" after an investigation that was "reasonable in the circumstances of the case", how come the above sections from the initial first interview to the hearing do not follow this protocol? This is because relevant information in each stage is missing to progress the 3 sections of the Burchell Test.
Barry Cook makes up his own thoughts on what happened, he has no idea how, when, where that warning horn behaved so he comes up with a generic charge and calls it a warning horn failure.
Along comes Mark Atkinson who then decides from this that I will charge him with the worst possible case scenario and he decides I had a complete failure of the warning horn, this is despite making it very clear that I encountered a partial failure of the warning horn. Basically the hearing is now essentially the investigation.
Steve Trumm who gave me excellent representation had noticed all of this and this is the passage involved taken from my hearing.
117. ST: "I've got no problem with you asking a question its the manner in which the question is asked. You making inferences, this is not something that I generally see in these kind of hearings. Your making direct inferences, there is a degree of what I am picking up of pre-judgment here rather than full open and honest examination".
118. MA: "I can't prejudge unless, I certainly can't prejudge on these charges unless I hear HIS point of view from HIM. And that is why in reading the charge out, and reading out exactly what he should have done, I'll understand why he didn't do that".
119. ST: "We are in a position where, having read through the charges, you are by the way in which you are presenting, demonstrating what you believe those charges are".
"YOU ARE BY THE WAY IN WHICH YOU ARE PRESENTING, DEMONSTRATING WHAT YOU BELIEVE THOSE CHARGES ARE".
How did I stand any chance of a fair hearing, bring in all the other sections of this website, other managers lies, withheld information, procedural irregularities, hostility, bullying, ignorance and not forgetting the use of a solicitor against me before my hearing and appeal.
One extremely relevant piece of information to note: Stated in the investigation report.
9.1 "By not following the correct reporting procedure the driver allowed the unit to remain in
traffic with faults that he believed to be serious and potentially capable of contributing to a safety of the line incident".
I said all along that I had a "partial failure" of the warning horn, if I had managed to get through to control on either of the occasions that I attempted to call them and reported a partially defective warning horn, that train would have remained in traffic till the end of its diagrammed work, therefore even if it had been reported, nothing would have changed, that train would still have remained in service. SO HOW THE HELL CAN THIS BE CLASSED AS GROSS MISCONDUCT?
11 Reasons why this should never have been classed as "Gross Misconduct".
1. I attempted to inform control via the NRN radio, I couldn't get through.
2. In my mind, I found that to try and contact control from Darlington was out of the question
due to the position I was in and at Northallerton I would have blocked a busy junction.
3. The fault rectified itself approaching York. The warning horn was now fully functional.
4. I was informed of a set swap in York, the train was turning round and was now being
driven from the other cab.
5. On arrival in York at 10.30, their was mass confusion among passengers, who were
boarding this train thinking it was still an Airport service.
6. I completely forgot to put my name, grade, date etc on the repair book sheet and took
the top copy and placed inside my drivers bag.
7. After all the confusion I had just enough time to use the toilet and get a drink before
my next service departed. Hence I never faxed the repair slip.
8. TransPennine Express, Defective On Train Equipment Contingency Plans allow this
train with a partially defective warning horn to remain in service without any restrictions
to its speed, in other words this train can run at 100mph all day long!
9. In line with "EQUITY", I still have proof that other Drivers treated this type of failure the
same as I did, but both Managers, Mark Atkinson and Paul Watson dismissed this. Why
single me out?
10. Then there is my evidence on this website that shows how Siemens and TPE allowed
trains to run with "COMPLETE FAILURES" of the warning horn!
11. The failure of warning horns had become a standing joke, nobody could be bothered to report them, IT BECAME THE NORM, every train, every cab, every day and in 3 years absolutely nothing changed.
More information to back up my argument
4. Mark Atkinson was asked by my representative Steve Trumm,
“What is your ideal solution to the issue”.
“What do we do collectively as a grade of drivers to operate to the standards you want us to operate to with these trains"?
"Do you want every train pulled every time there was a horn defect”?
Mark Atkinson`s response was, “I DON'T KNOW”, “AND I DON'T THINK IT IS FOR DEBATE IN THIS FORUM”.
This is a senior manager, who basically cannot answer what he expects of drivers under his control faced with the exact same problem that I had, he admits that HE DOESN'T KNOW!
So you have to ask yourself, if he doesn't know the answer, how can he possibly find me guilty on charges that when (a) he has no idea what to do, if a train has a defective warning horn in the future and (b) has no idea what he expects of Drivers under his management.
The situation we were in was clearly the right place to debate the very issue that was at the heart of this hearing, I find it unbelievable that Route Driver Manager Mark Atkinson cannot debate this topic or give his own reasoning to the question, "What is your ideal solution", to me this shows that this individual is way out of his depth. I have supposedly
done something abhorrently wrong, all Steve Trumm asks, is basically, what should I have done in the situation I was faced with.
Remember the following statement made by this man earlier in the very same hearing.
"And that is why in reading the charge out, and reading out exactly what he should have done, I'll understand why he didn't do that".
So why all of a sudden is this "not for debate"?
You've guessed it, Route Driver Manager Mark Atkinson cannot answer because if he answers truthfully it vindicates me.
EVERYTHING AGAINST ME WAS MADE TO FIT.
17. "An employee who accepts what he had done wrong, who expresses remorse, who expresses a willingness to learn his lesson is an employee who may escape with a warning. As Mr Robinson submits all the indications that were given to the respondent by Mr Webb and by his trade union
representation in the course both of the disciplinary hearing and the appeal hearing was that he believed his actions were justified. He still believes his actions were justified".
All TPE procedures including the Blue Book were totally bypassed, there was only one clear goal for TPE and that was to dismiss me. I only behaved that morning with the train defects exactly how I always did, previous reports I had put in were the utmost proof of this, I was never given any indication that I was doing wrong, therefore how could I show remorse? Not forgetting that every other driver behaved the same way!
When you are constantly ignored like I was, if there is no dialogue, no on-going training how can you prove yourself with a willingness to learn? LETS FACE REALITY, WHAT REALISTIC CHANCE DID I HAVE?
Lock v Cardiff Railway Company Ltd [1998] IRLR 353,
"Morrison J presiding. He refers to the absence of reference by this Employment Tribunal at paragraph 8 of the ACAS Code of Practice, which provides:
"Employees should be made aware of the likely consequences of breaking rules and in particular they should be given a clear indication of the type of conduct which may warrant summary dismissal."
Nobody but nobody could believe that even if I was guilty, that an apparent failure to report a partially defective warning using the correct procedure could be classed as gross misconduct and become a dismissal offence.
“It is right to say that the precise offence for which the Appellant's was dismissed does not appear in the examples of gross misconduct which may lead to a summary dismissal in this employer's disciplinary procedure”.
The above is exactly the same for TPE, even if I was guilty, when has a failure to report a partially defective warning horn ever been classed as gross misconduct?
"It will be observed at once that nowhere have the employers spelt out the likely consequences to an employee of breaking rules, other than in a general sense. In particular, they have failed to give a clear indication of which type of conduct may warrant summary dismissal. It is not specified in the disciplinary Code which offences could be described as gross for which a first
breach would justify the disciplinary sanction of dismissal".
The whole world and his dog know my alleged conduct was not a dismissal offence.
"It seems to us essential that employees should be given due warning of which types of
misconduct will, on a first breach, lead to dismissal. They are entitled to know before they are dismissed what they may be in for if they break that particular rule. It seems to us to be no answer to say that this was an agreed Code and that Mr Lock's agent, his union, made the agreement, because, as it seems to us, the union cannot be taken on Mr Lock's behalf to have agreed that any one-off breach of any one of the rules set out in 15.1 would thereby justify a dismissal for gross misconduct. It is clear from paragraph 16 that any breach of any of those rules might have led to action short of dismissal. It seems to us that the fact that the unions may have agreed to a Code, does not deprive Mr Lock of the benefit of good industrial relations practices".
Everyone on the railway knows full well that even if I was guilty of the alleged failing to report train defects this does not warrant dismissal for a first offence, otherwise as my website shows, TPE would have had to dismiss numerous other drivers for the same offence. So the question is, why was I the only one dismissed? What did happen to EQUITY in the eyes of the law? Only Judge Burton can answer that.
The above examples are only a few of the examples available, Judge Burton was ignorant of the very law he is supposed to uphold, so as anyone can see, it is not only TPE that I have to battle with but the whole corrupt judicial system, but battle I will until the day I get JUSTICE.
Judge Burton and the whole Judicial system are a disgrace, there was an air of pompous arrogance throughout my tribunal, only Judge Burton knows why he wouldn't let me read out my witness statement, the same arrogance and rudeness towards me is evident to this very day, my personal thoughts are that they are as corrupt as hell, there is simply no chance of a fair hearing if you represent yourself, you are looked down upon as being a pauper, you are treated with utter contempt, thankfully though, I wasn't sent to the workhouse afterwards.
This is a fine example of Great British Justice.
As for luck, lets never forget, luck eventually runs out for everyone.
FURTHER EVIDENCE
Further evidence to support my argument on the "Burchell Test" precedent is as follows from my initial first interview to my hearing with Route Driver Manager Mark Atkinson.
It is regarding the only reason for my dismissal that came from the Employment Tribunal findings of:- "A failure to follow the correct reporting procedure for a defective warning horn".
Below is what information was found and mentioned specifically regarding the warning horn that morning.
Investigatory Interview 1: (Never once asked about the behaviour of the warning horn).
I stated: "The unit was very noisy and draughty and the wipers and warning horn did not work correctly".
Investigatory Interview 2: (Never once asked about the behaviour of the warning horn).
I stated: "thought that it might be cold enough to cause freezing problems with the horn".
I stated: "mentioned that he had had faults with warning horns and wipers in the past".
Investigation Report: (No mention of the type of warning horn failure).
"The driver believed that temperatures might have been sufficiently low enough to cause freezing problems with the warning horn, although this was disputed by the FTPE technical engineering manager".
"At 00.30hrs control were advised by staff at Ardwick TMD that a defect slip had been found on 185119 detailing three faults and making safety allegations against the unit. The defect slip listed the following faults:
1. Noise and draught through drivers side drop down window, excessive cab noise.
2. Windscreen wiper.
3. Warning horn".
"Investigation by depot staff revealed the following:- Warning horn - the horn was tested and found to be fully operational".
"A review of the units history (as far back as period 4) confirmed that there had not been any reports of cab noise or horn failure".
Charges Letter: Please note, the charge below supposedly came from the information above. It did not contain reference to which rule was supposedly broken, a rule book prefix was required.
But looking at the information regarding the warning horn above, how could Barry Cook come up with this charge?
1. "On Wednesday 14th January you failed to follow the correct procedure for reporting a defective warning horn"
Hearing: Please note from the above information the following is Mark Atkinson's interpretation.
MA: Said in relation to the charges, “You failed to follow the correct procedure for reporting a defective warning horn. That in mind”,
1. "You didn`t stop and report it at the controlling signaller".
2. "You didn’t report it to the train operating control".
3. "No point did you reduce the train speed".
4. "You did not complete the repair book procedure correctly".
As anyone can see if someone has a "genuine belief" based on "reasonable grounds" after an investigation that was "reasonable in the circumstances of the case", how come the above sections from the initial first interview to the hearing do not follow this protocol? This is because relevant information in each stage is missing to progress the 3 sections of the Burchell Test.
Barry Cook makes up his own thoughts on what happened, he has no idea how, when, where that warning horn behaved so he comes up with a generic charge and calls it a warning horn failure.
Along comes Mark Atkinson who then decides from this that I will charge him with the worst possible case scenario and he decides I had a complete failure of the warning horn, this is despite making it very clear that I encountered a partial failure of the warning horn. Basically the hearing is now essentially the investigation.
Steve Trumm who gave me excellent representation had noticed all of this and this is the passage involved taken from my hearing.
117. ST: "I've got no problem with you asking a question its the manner in which the question is asked. You making inferences, this is not something that I generally see in these kind of hearings. Your making direct inferences, there is a degree of what I am picking up of pre-judgment here rather than full open and honest examination".
118. MA: "I can't prejudge unless, I certainly can't prejudge on these charges unless I hear HIS point of view from HIM. And that is why in reading the charge out, and reading out exactly what he should have done, I'll understand why he didn't do that".
119. ST: "We are in a position where, having read through the charges, you are by the way in which you are presenting, demonstrating what you believe those charges are".
"YOU ARE BY THE WAY IN WHICH YOU ARE PRESENTING, DEMONSTRATING WHAT YOU BELIEVE THOSE CHARGES ARE".
How did I stand any chance of a fair hearing, bring in all the other sections of this website, other managers lies, withheld information, procedural irregularities, hostility, bullying, ignorance and not forgetting the use of a solicitor against me before my hearing and appeal.
One extremely relevant piece of information to note: Stated in the investigation report.
9.1 "By not following the correct reporting procedure the driver allowed the unit to remain in
traffic with faults that he believed to be serious and potentially capable of contributing to a safety of the line incident".
I said all along that I had a "partial failure" of the warning horn, if I had managed to get through to control on either of the occasions that I attempted to call them and reported a partially defective warning horn, that train would have remained in traffic till the end of its diagrammed work, therefore even if it had been reported, nothing would have changed, that train would still have remained in service. SO HOW THE HELL CAN THIS BE CLASSED AS GROSS MISCONDUCT?
11 Reasons why this should never have been classed as "Gross Misconduct".
1. I attempted to inform control via the NRN radio, I couldn't get through.
2. In my mind, I found that to try and contact control from Darlington was out of the question
due to the position I was in and at Northallerton I would have blocked a busy junction.
3. The fault rectified itself approaching York. The warning horn was now fully functional.
4. I was informed of a set swap in York, the train was turning round and was now being
driven from the other cab.
5. On arrival in York at 10.30, their was mass confusion among passengers, who were
boarding this train thinking it was still an Airport service.
6. I completely forgot to put my name, grade, date etc on the repair book sheet and took
the top copy and placed inside my drivers bag.
7. After all the confusion I had just enough time to use the toilet and get a drink before
my next service departed. Hence I never faxed the repair slip.
8. TransPennine Express, Defective On Train Equipment Contingency Plans allow this
train with a partially defective warning horn to remain in service without any restrictions
to its speed, in other words this train can run at 100mph all day long!
9. In line with "EQUITY", I still have proof that other Drivers treated this type of failure the
same as I did, but both Managers, Mark Atkinson and Paul Watson dismissed this. Why
single me out?
10. Then there is my evidence on this website that shows how Siemens and TPE allowed
trains to run with "COMPLETE FAILURES" of the warning horn!
11. The failure of warning horns had become a standing joke, nobody could be bothered to report them, IT BECAME THE NORM, every train, every cab, every day and in 3 years absolutely nothing changed.
More information to back up my argument
4. Mark Atkinson was asked by my representative Steve Trumm,
“What is your ideal solution to the issue”.
“What do we do collectively as a grade of drivers to operate to the standards you want us to operate to with these trains"?
"Do you want every train pulled every time there was a horn defect”?
Mark Atkinson`s response was, “I DON'T KNOW”, “AND I DON'T THINK IT IS FOR DEBATE IN THIS FORUM”.
This is a senior manager, who basically cannot answer what he expects of drivers under his control faced with the exact same problem that I had, he admits that HE DOESN'T KNOW!
So you have to ask yourself, if he doesn't know the answer, how can he possibly find me guilty on charges that when (a) he has no idea what to do, if a train has a defective warning horn in the future and (b) has no idea what he expects of Drivers under his management.
The situation we were in was clearly the right place to debate the very issue that was at the heart of this hearing, I find it unbelievable that Route Driver Manager Mark Atkinson cannot debate this topic or give his own reasoning to the question, "What is your ideal solution", to me this shows that this individual is way out of his depth. I have supposedly
done something abhorrently wrong, all Steve Trumm asks, is basically, what should I have done in the situation I was faced with.
Remember the following statement made by this man earlier in the very same hearing.
"And that is why in reading the charge out, and reading out exactly what he should have done, I'll understand why he didn't do that".
So why all of a sudden is this "not for debate"?
You've guessed it, Route Driver Manager Mark Atkinson cannot answer because if he answers truthfully it vindicates me.
EVERYTHING AGAINST ME WAS MADE TO FIT.