Judge Burton & the Burchell Test
The following will highlight the injustice involved at my employment tribunal and Judge Burton's ignorance of the very law he was there to uphold.
Firstly, I will display the 3 charges levelled against me.
BURCHELL TEST
Above are the 3 charges, I will now add below the "Burchell Test", (British Home Stores v Burchell 1978) which states that at the time of dismissal the 3 following statements.
1. The employer had a genuine belief in the employee's guilt.
2. It had reasonable grounds for that belief.
3. At the time it held that belief, the employer had carried out as much INVESTIGATION as was reasonable in the circumstances.
How could my supposed actions as listed in the letter be classed as gross misconduct as they could not have originated from the investigation report? Read for yourself below.
EXTRACTS FROM JUDGE BURTON'S WRITTEN REASONS
Above are the 3 charges, I will now add below the "Burchell Test", (British Home Stores v Burchell 1978) which states that at the time of dismissal the 3 following statements.
1. The employer had a genuine belief in the employee's guilt.
2. It had reasonable grounds for that belief.
3. At the time it held that belief, the employer had carried out as much INVESTIGATION as was reasonable in the circumstances.
How could my supposed actions as listed in the letter be classed as gross misconduct as they could not have originated from the investigation report? Read for yourself below.
EXTRACTS FROM JUDGE BURTON'S WRITTEN REASONS
Judge Burton: 9. The respondent took the view that Mr Webb had committed a disciplinary offence. He had failed to follow the rulebook 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.
My Response: Firstly, how could the charge in relation to this response possibly have originated from the investigation report? Judge Burton believes through the lies especially those from Mark Atkinson that I failed to carry out rule book instructions and I didn't STOP my train and report the fault!
Rule book instructions - Partial Failure of the warning horn state.
My Response: Firstly, how could the charge in relation to this response possibly have originated from the investigation report? Judge Burton believes through the lies especially those from Mark Atkinson that I failed to carry out rule book instructions and I didn't STOP my train and report the fault!
Rule book instructions - Partial Failure of the warning horn state.
So where the hell does it tell me to STOP MY TRAIN?
Also lets not forget that if TPE Control had been informed it would have made no difference to the running of that train, the contingency plans allow the train to stay in service and run all day without any restrictions.
It would have also stayed in service because before it arrived in York both tones of the horn worked. Furthermore there would have been no restriction to the speed of this train, it would have run at line speed or a maximum of 100mph.
It would have also stayed in service because it actually left York being driven from the other cab due to a set swap.
Finally, I treated this partial failure like I did every other one, it was an every day occurrence. If I had supposedly been doing something wrong, why wasn't it brought to my attention before? Its because as I have proven in the sections, "Warning Horns The Shocking Truth", TPE ignored the issue, even allowing trains with complete failures of the warning horn to run all day without any restrictions.
Also lets not forget that if TPE Control had been informed it would have made no difference to the running of that train, the contingency plans allow the train to stay in service and run all day without any restrictions.
It would have also stayed in service because before it arrived in York both tones of the horn worked. Furthermore there would have been no restriction to the speed of this train, it would have run at line speed or a maximum of 100mph.
It would have also stayed in service because it actually left York being driven from the other cab due to a set swap.
Finally, I treated this partial failure like I did every other one, it was an every day occurrence. If I had supposedly been doing something wrong, why wasn't it brought to my attention before? Its because as I have proven in the sections, "Warning Horns The Shocking Truth", TPE ignored the issue, even allowing trains with complete failures of the warning horn to run all day without any restrictions.
Judge Burton: 11. It seems to us that Mr Webb could have saved the situation if he had acknowledged at that disciplinary hearing that he had failed to comply with that rule, if he had acknowledged the importance of complying with such rules, if he had expressed remorse and if he had demonstrated an intention to comply with such rules in the future. It may have been that the Respondents may have considered a sanction short of dismissal as having been appropriate.
My Response: The disciplinary hearing officer Mark Atkinson did not know what type of warning horn failure my train had on that January morning because the investigation was totally flawed and never once mentioned the behaviour of the warning horn. He was told by me (evidence in the minutes) that I had a partial failure of the warning horn, in other words the disciplinary hearing becomes an investigation!
Therefore how on earth could I acknowledge failing to comply to a rule that was totally irrelevant to the position I was in that morning? I did not have a complete failure of the warning horn, I had a partial failure of the warning horn. This was a major fact that was not mentioned anywhere in the investigation report, it simply never ascertained anything regarding the warning horn fault and how I dealt with it!
How can the charges I faced be "GROSS MISCONDUCT" as Judge Burton states, if I had said the following, I would not have been dismissed?
1. Sorry.
2. I will treat a partial failure of the warning horn as a complete failure.
3. In the future I will continue to treat a partial failure as a complete failure.
Judge Burton: 13. He did not express any remorse for having failed to comply with the rule book. He did not express remorse for having told this lie on the defect report sheet. He sought to justify his actions and, as a consequence, Mr Atkinson who dealt with the disciplinary hearing, concluded that dismissal was the only appropriate sanction.
My Response: My disciplinary hearing was extremely hostile, I had never encountered such an approach from a Manager before. I did not fail to comply with the Rule Book, I treated the partial failure of the warning horn like I had always done before and how every other driver treated that rule, it was such a common every day, every train fault.
Mark Atkinson however had clearly decided before I even gave my evidence that I was guilty of gross misconduct, this is reflected by what he says in the minutes, that the charges are clearly gross misconduct before he hears what I have to say.
The lie on the defect sheet was an attempt to try and get TPE to listen, it didn't matter what I thought, it never mattered, my array of reports proves this.
Judge Burton: 15. We turn to our findings. The first issue we have to determine is what was the principal reason for dismissal. The reason was a reason that relates to the claimants conduct. That is a potentially fair reason. We then have to consider whether the respondent behaved reasonably in using that as a reason to dismiss the claimant. We determine that issue in accordance with equity and the merits of the case taking into account the respondents size and administrative resources.
My Response: You determined that my dismissal was fair in accordance with “EQUITY”, I thought that EQUITY meant that everyone should be treated equal. I provided pages and pages of evidence to show that other drivers behaved in the same way that I did and that some actually failed to report complete warning horn failures. So the question is, WHY WAS I THE ONLY DRIVER CHARGED? Why did the Judges ignore my witness statement?
What was considered the merits of this case? My conduct was on that day how it was on any other similar day. The warning horn partial failure was such a common fault that nobody bothered to report it.
There were many procedural deficiencies and other issues that were not taken into account, they are still in my witness statement. There was without doubt a conspiracy against me.
Judge Burton: 16. 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.
My Response: The well known Burchell Test! There is absolutely no way that these 3 judges applied this test.
I never once admitted that I failed to follow any procedures.
The only issue that I admitted was that there had not been a near miss that required reporting. I never admitted anything else whatsoever.
How can the dismissal be a reasonable response if as Judge Burton said earlier that a simple apology would have resulted in a sanction short of dismissal?
Further responses can be found in the section titled, "Judge Burton's written reasons".
INVESTIGATION REPORT
Below I have added the INVESTIGATION carried out by Stephen Percival. Please take note of what the INVESTIGATION is titled.
I would like to point out and as you can read for yourself. Nowhere within this character assassination of an investigation is it mentioned or is there any other evidence regarding the behaviour of the warning horn that morning in question. In other words it was never ascertained what type of warning horn failure I encountered.
ACAS Guidelines state: An investigator should try to be fair and objective when carrying out an investigation. They should look for evidence that supports and undermines the allegations.
Where was anything added that would support my side of this? As you can see, this so called report was more like a character assassination, it never once looked into the behaviour of the warning horn, or how I supposedly behaved towards the partial failure of the warning horn.
This is what Stephen Percival says about the warning horn.
4.6 "The driver believed that temperatures might have been sufficiently low enough to cause freezing problems with the warning horn, although this is disputed by FTPE Technical Engineering manager".
4.22 Investigation by depot staff revealed the following. "The horn was tested and found to be fully operational".
That is it, two small paragraphs, so where from this information do TPE Management formulate the charges against me? How can they even charge me with a generic description as "failing to follow the correct procedure for reporting a defective warning horn"?
Yet they told Judge Burton that I failed to report a COMPLETE FAILURE OF THE WARNING HORN,
BLATANT PERJURY! Even going into great detail to what I supposedly failed to do!
On this section alone, THERE IS NO WONDER THAT I WILL NEVER GIVE UP IN MY PURSUIT OF JUSTICE. I WILL HAVE MY DAY, ONE WAY OR ANOTHER!
This is what Stephen Percival says about the warning horn.
4.6 "The driver believed that temperatures might have been sufficiently low enough to cause freezing problems with the warning horn, although this is disputed by FTPE Technical Engineering manager".
4.22 Investigation by depot staff revealed the following. "The horn was tested and found to be fully operational".
That is it, two small paragraphs, so where from this information do TPE Management formulate the charges against me? How can they even charge me with a generic description as "failing to follow the correct procedure for reporting a defective warning horn"?
Yet they told Judge Burton that I failed to report a COMPLETE FAILURE OF THE WARNING HORN,
BLATANT PERJURY! Even going into great detail to what I supposedly failed to do!
On this section alone, THERE IS NO WONDER THAT I WILL NEVER GIVE UP IN MY PURSUIT OF JUSTICE. I WILL HAVE MY DAY, ONE WAY OR ANOTHER!