.I would like to point out that 3 days before this tribunal I was expecting Judge Colin Grazin to hear this case as he was familiar with all the case management discussions, however I received a phone call stating that Judge Colin Grazin was no longer available and they were looking for another Judge, it was only the day before that I was told Judge Burton was presiding. I was allocated 3 days for this tribunal, Judge Burton was unwell with a cold and sore throat and clearly did not want to be there. He refused to let me read out my witness statement and finished the tribunal after one day and a morning. I was never given the reason why Judge Colin Grazin was removed.
I have been been informed of a previous case in 2010 where Judge Colin Grazin was removed after dealing with all the case management meetings and Judge Burton appointed (Neil Wilby v West Yorkshire Police). Coincidence or something else?
Please also read the section titled, "Burchell Test (law)", it highlights the sheer ignorance of Judge Burton towards myself. The section highlights legally set precedents that this Judge couldn't be bothered to uphold.
I have been been informed of a previous case in 2010 where Judge Colin Grazin was removed after dealing with all the case management meetings and Judge Burton appointed (Neil Wilby v West Yorkshire Police). Coincidence or something else?
Please also read the section titled, "Burchell Test (law)", it highlights the sheer ignorance of Judge Burton towards myself. The section highlights legally set precedents that this Judge couldn't be bothered to uphold.
Case No: 1809252/2009
1809253/2009
EMPLOYMENT TRIBUNALS
Claimant: Mr P P Webb
Respondent: Transpennine Express (First Group)
Heard at: Leeds On: 6 and 7 July 2010
Before: Employment Judge Burton
Members: Mr G W Skelding
Dr P Lewis
JUDGMENT
having been sent to the parties on 20 July 2010 and reasons having been requested in accordance with Rule 30(5) of the Rules of Procedure 2004.
REASONS
1. This is a complaint brought by Mr Webb against the Respondent company
whereby he complaints of unfair dismissal. The Claimant has represented
himself before the Tribunal the Respondents being represented by Mr Robinson, Solicitor.
2. The single issue effectively that we have to resolve is whether dismissal was within the band of reasonable responses.
REASONABLE!
1. Was it REASONABLE to interrogate me (My hearing) when the doctor`s notes clearly pointed out that I was not a well person? “I discussed with him his personal situation and can quite easily understand his difficulties. At the moment he is not fit to return to work but I am unable to predict how soon his health will be restored. As yet is not receiving either medication or counselling. Either will be appropriate and possibly both in order to help him overcome his difficulties. There was clear evidence of anxiety and depression today”.
2. Was it REASONABLE to blatantly ignore everything I ever did regarding health and safety?
3. Was it REASONABLE that Mark Atkinson didn't even know what type of warning horn failure the train actually had? Mark Atkinson couldn't even answer me in the tribunal with that very first question, yet I was supposedly found guilty by him on this. Mark Atkinson did not understand the charges, throughout my hearing he continually charged me with a complete failure of the warning horn, UNTIL I RECEIVE HIS DISCIPLINARY HEARING OUTCOME LETTER!
4. Was it REASONABLE to level charges against me that could not have possibly originated from the investigation report.
1809253/2009
EMPLOYMENT TRIBUNALS
Claimant: Mr P P Webb
Respondent: Transpennine Express (First Group)
Heard at: Leeds On: 6 and 7 July 2010
Before: Employment Judge Burton
Members: Mr G W Skelding
Dr P Lewis
JUDGMENT
having been sent to the parties on 20 July 2010 and reasons having been requested in accordance with Rule 30(5) of the Rules of Procedure 2004.
REASONS
1. This is a complaint brought by Mr Webb against the Respondent company
whereby he complaints of unfair dismissal. The Claimant has represented
himself before the Tribunal the Respondents being represented by Mr Robinson, Solicitor.
2. The single issue effectively that we have to resolve is whether dismissal was within the band of reasonable responses.
REASONABLE!
1. Was it REASONABLE to interrogate me (My hearing) when the doctor`s notes clearly pointed out that I was not a well person? “I discussed with him his personal situation and can quite easily understand his difficulties. At the moment he is not fit to return to work but I am unable to predict how soon his health will be restored. As yet is not receiving either medication or counselling. Either will be appropriate and possibly both in order to help him overcome his difficulties. There was clear evidence of anxiety and depression today”.
2. Was it REASONABLE to blatantly ignore everything I ever did regarding health and safety?
3. Was it REASONABLE that Mark Atkinson didn't even know what type of warning horn failure the train actually had? Mark Atkinson couldn't even answer me in the tribunal with that very first question, yet I was supposedly found guilty by him on this. Mark Atkinson did not understand the charges, throughout my hearing he continually charged me with a complete failure of the warning horn, UNTIL I RECEIVE HIS DISCIPLINARY HEARING OUTCOME LETTER!
4. Was it REASONABLE to level charges against me that could not have possibly originated from the investigation report.
5. Was it REASONABLE not to allow me the opportunity to read out my witness statement? Which totally contradicts these written reasons.
6. Is it REASONABLE for Route Driver Manager and Operations Director Paul Watson to (at the moment) get away with PERJURY, their blatant LIES are on this website for everyone to see.
7. How can it be reasonable to class failing to report a partially defective warning horn as gross misconduct when it made no difference to the running of that train because if I had of informed control that train would have remained in service unrestricted for the remainder of the day.
3. On 14 January 2009 Mr Webb was driving a train from Newcastle to York.
He was on his way down south and he noticed a fault with his horn. Trains
have a two-tone horn; one tone worked and the other did not. Mr Webb has
had experience of such faults in the past. The Respondent accepts that this
was a recurring fault which seemed to relate to weather conditions.
WHAT SHOULD HAVE BEEN TAKEN INTO ACCOUNT
1. My experience of such faults in the past should have been explored thoroughly. These faults were an every day, every train occurrence in freezing and damp weather conditions.
2. Including how I responded on previous occasions with the exact same fault. Again this fault happened on every train with the above weather conditions.
3. How far back this fault goes. All the way back to their introduction in 2006, this is even admitted by TPE and Siemens.
4. The amount of times I encountered this fault, numerous times a day.
5. The amount of other drivers who encountered this fault and their actions in dealing with it. They blatantly ignored the fault because it was such a regular occurrence and they knew it was a waste of time to report.
6. Why didn`t any other driver get charged with failing to report a defective warning horn? I can prove they were all guilty of this. Proof is on this website.
7. TPE admitted that this was a recurring fault, not just over the course of days, weeks, months, but years!
8. If this recurring fault had been addressed this situation would never have happened.
9. If someone had the decency to explain to me what was happening then with that understanding this would never have happened.
10. If as the Respondents admitted, that this was a recurring fault which they were clearly aware of, it cannot have been a fault that in THEIR mind was a danger. Therefore how can the supposed charges levelled against me possibly be of such a grave magnitude that they warrant charges of Gross Misconduct?
11. I ask anyone who reads this website, could you have put up with the level of IGNORANCE displayed by this Management? How would you have dealt with it?
4. Mr Webb knew what he had to do. The rule book, of which he was very
much aware, makes that plain. We see the relevant rule at Page 48 of the
bundle. When there is a partial failure of his horn at the first convenient
opportunity he must stop the train and he must tell the train operator's
control. The first convenient opportunity may include the next schedule
station or some other stopping point of the journey or when detained at a signal. If by stopping the train delays occur the driver must inform the signaller of the reason for that delay.
1. The relevant rule is as follows.
b) Stopping train at the first convenient opportunity
You must stop your train at the first convenient opportunity when you become aware of a defect on the following equipment and tell the train operator’s control:
The first convenient opportunity may include the next scheduled station or other stopping point on the journey, or when detained at
a signal showing a stop aspect. If reporting the defect will cause delay, you must tell the signaller the reason for the delay.
1. Yet according to Route Driver Manager Mark Atkinson's Witness Statement, this was not the Ruling that I supposedly failed to carry out! Everything was made up as they went along.
The above ruling for a partial failure of the warning horn was in the bundle of TPE, this is in total contradiction to what Route Driver Manager Mark Atkinson reads out from his witness statement to the tribunal. This was one of numerous LIES by this man, I believe it is called PERJURY.
5. Mr Webb knew that that was what he should do because he tried to use his on-board radio to make that call. He tells us the radio failed because of reception problems. His train came to a halt at Darlington. He could have made a telephone call from there, he did not. The train came to a halt in Northallerton. He could have made a telephone call from there, he did not. He chose not to, he says, because he thought that to do so was inconvenient, the signals were on green and he did not want to delay the train even though the rules make it clear that reporting such matters takes priority over maintaining the punctual service. He also elected to take the view that there would be no point in reporting the fault because he would just have been told to continue with his journey. He accepts however that that decision was for others to make not him.
WHAT SHOULD HAVE BEEN TAKEN INTO ACCOUNT
1. On arrival in Darlington I attempted to inform TPE control from the cab telephone but the call failed to go through, this is a very common problem with NRN (National Radio Network) radio`s.
I had green signals and although my train had stopped, knowing the layout of Darlington station in my judgment it was not practicable to try and find another means of contacting control.
As in rule book (5) (1) Driver reporting a defect, 2.2 “If possible you must avoid stopping the train, at any other place where it might be difficult to deal with the situation”.
Rule Book, Part A, 2.2 Driver reporting a defect.
When you are required to report defective on train equipment, depending on the on train equipment concerned, you must.
Tell the train operators control at the first convenient opportunity (see 1.2b).
If possible you must AVOID stopping the train:
On a junction.
At any other place where it might be difficult to deal with the situation.
In my judgment:
Darlington was a difficult place to deal with the situation because of its layout.
Northallerton is on a busy junction.
Therefore did I abide by the above ruling? YES I DID.
much aware, makes that plain. We see the relevant rule at Page 48 of the
bundle. When there is a partial failure of his horn at the first convenient
opportunity he must stop the train and he must tell the train operator's
control. The first convenient opportunity may include the next schedule
station or some other stopping point of the journey or when detained at a signal. If by stopping the train delays occur the driver must inform the signaller of the reason for that delay.
1. The relevant rule is as follows.
b) Stopping train at the first convenient opportunity
You must stop your train at the first convenient opportunity when you become aware of a defect on the following equipment and tell the train operator’s control:
The first convenient opportunity may include the next scheduled station or other stopping point on the journey, or when detained at
a signal showing a stop aspect. If reporting the defect will cause delay, you must tell the signaller the reason for the delay.
1. Yet according to Route Driver Manager Mark Atkinson's Witness Statement, this was not the Ruling that I supposedly failed to carry out! Everything was made up as they went along.
The above ruling for a partial failure of the warning horn was in the bundle of TPE, this is in total contradiction to what Route Driver Manager Mark Atkinson reads out from his witness statement to the tribunal. This was one of numerous LIES by this man, I believe it is called PERJURY.
5. Mr Webb knew that that was what he should do because he tried to use his on-board radio to make that call. He tells us the radio failed because of reception problems. His train came to a halt at Darlington. He could have made a telephone call from there, he did not. The train came to a halt in Northallerton. He could have made a telephone call from there, he did not. He chose not to, he says, because he thought that to do so was inconvenient, the signals were on green and he did not want to delay the train even though the rules make it clear that reporting such matters takes priority over maintaining the punctual service. He also elected to take the view that there would be no point in reporting the fault because he would just have been told to continue with his journey. He accepts however that that decision was for others to make not him.
WHAT SHOULD HAVE BEEN TAKEN INTO ACCOUNT
1. On arrival in Darlington I attempted to inform TPE control from the cab telephone but the call failed to go through, this is a very common problem with NRN (National Radio Network) radio`s.
I had green signals and although my train had stopped, knowing the layout of Darlington station in my judgment it was not practicable to try and find another means of contacting control.
As in rule book (5) (1) Driver reporting a defect, 2.2 “If possible you must avoid stopping the train, at any other place where it might be difficult to deal with the situation”.
Rule Book, Part A, 2.2 Driver reporting a defect.
When you are required to report defective on train equipment, depending on the on train equipment concerned, you must.
Tell the train operators control at the first convenient opportunity (see 1.2b).
If possible you must AVOID stopping the train:
On a junction.
At any other place where it might be difficult to deal with the situation.
In my judgment:
Darlington was a difficult place to deal with the situation because of its layout.
Northallerton is on a busy junction.
Therefore did I abide by the above ruling? YES I DID.
2. Judge Burtons remark, “even though the rules make it clear that reporting such matters takes priority over maintaining the punctual service”. The rules are not clear, they only state “IF” reporting the defect will cause delay, you must tell the signaller the reason for the delay.
THE RULES DO NOT STATE, "even though the rules make it clear that reporting such matters takes priority over maintaining the punctual service”.
"IF", is an uncertain possibility, it is decided by the decision to do something or not to do something. As the Driver that morning, the "IF" became my decision. Due to my vast railway knowledge I decided that I was not in a position to report the situation using other means.
Had the ruling been clear and concise stating that for a PARTIAL FAILURE of the warning horn when contacting control you must do this immediately you become aware of the failure, even stopping your train to do so, then with that explanation, I would have done exactly that and stopped my train and reported it.
3. Every other time that I have reported such incidents, the answer has always been the same, “Train can continue at line speed (100mph)”, this is what the contingency plan states. This contingency plan cannot be deviated from, what is in it must apply as the rule book implies:-
Rule Book, Part A, 2.6
2.6 Train Operator`s Control receiving a report: (From the Driver or the signaller via Ops Control).
When the operations controller tells you the circumstances surrounding defective or isolated on-train equipment, you must:-
Decide, from the Defective On Train Equipment, (DOTE) Contingency Plans, the appropriate action to be taken and tell Operations Control what action must be taken to put the appropriate arrangements in place.
Contingency Plans:-
Warning Horn: In Service Actions:
Partially Defective, Train may complete its journey
One tone failed in an active cab
4. Before I arrived in York this warning horn started functioning correctly, if I had manage to contact TPE Control, it wouldn`t have made any difference whatsoever. Evidence in my 4 section`s on warning horns is more than enough proof of this.
5. “The convenient opportunity MAY include the next scheduled station or other stopping point on the journey”, the only convenient place for me that day would have been York Station, in other words, “or other stopping point in the journey”, but due to mass confusion (see 7 below) and the fact that this train was being driven from the other cab, returning North to Middlesbrough, I completely forgot to inform control, not that it was such, that this urgently required them to know about. If they were informed, the contingency plan would have allowed that train to run unrestricted.
6. This contingency plan would not have been of use, because when I arrived in York, the train was used for a different service going the other direction, amazingly no other driver that day reported any problems with that warning horn used in the same cab!
Contingency Plans:-
Warning Horn: In Service Actions:
Partially Defective, Train may complete its journey
One tone failed in an active cab
The cab being used to drive the train to Middlesbrough was not an active cab, where there was a warning horn failure, therefore this train would have continued its journey regardless of what previously occurred.
7. There was also the confusion caused by the set swap at York, see 7, 2 , (13) below.
6. Mr Webb has very strong feelings about safety on trains. He has had very unfortunate experiences in the past when he has seen the results of unsafe practises on the railways. It is a mystery to us as to why he did not see that his priority that morning should have been to make that telephone call.
WHAT SHOULD HAVE BEEN TAKEN INTO ACCOUNT
1. I made a decision that morning based on all my previous experience and knowledge of this type of fault. Why delay a service when the fault is not going to cause a problem with the running of the train?
2. If I had of reached TPE Control, like had had done in the past, their response would have been, train can continue at line speed (100mph). They never once took any train out of service for a partial failure of the warning horn, not once.
Contingency plans allow this train to run, I was fully aware of this, I did attempt to reach control, but the calls failed, in my mind, my priority then was to keep this train on time and regularly check the warning horn to make sure the failure does not become a complete failure. I had behaved exactly the same as this numerous times in the past.
THE RULES DO NOT STATE, "even though the rules make it clear that reporting such matters takes priority over maintaining the punctual service”.
"IF", is an uncertain possibility, it is decided by the decision to do something or not to do something. As the Driver that morning, the "IF" became my decision. Due to my vast railway knowledge I decided that I was not in a position to report the situation using other means.
Had the ruling been clear and concise stating that for a PARTIAL FAILURE of the warning horn when contacting control you must do this immediately you become aware of the failure, even stopping your train to do so, then with that explanation, I would have done exactly that and stopped my train and reported it.
3. Every other time that I have reported such incidents, the answer has always been the same, “Train can continue at line speed (100mph)”, this is what the contingency plan states. This contingency plan cannot be deviated from, what is in it must apply as the rule book implies:-
Rule Book, Part A, 2.6
2.6 Train Operator`s Control receiving a report: (From the Driver or the signaller via Ops Control).
When the operations controller tells you the circumstances surrounding defective or isolated on-train equipment, you must:-
Decide, from the Defective On Train Equipment, (DOTE) Contingency Plans, the appropriate action to be taken and tell Operations Control what action must be taken to put the appropriate arrangements in place.
Contingency Plans:-
Warning Horn: In Service Actions:
Partially Defective, Train may complete its journey
One tone failed in an active cab
4. Before I arrived in York this warning horn started functioning correctly, if I had manage to contact TPE Control, it wouldn`t have made any difference whatsoever. Evidence in my 4 section`s on warning horns is more than enough proof of this.
5. “The convenient opportunity MAY include the next scheduled station or other stopping point on the journey”, the only convenient place for me that day would have been York Station, in other words, “or other stopping point in the journey”, but due to mass confusion (see 7 below) and the fact that this train was being driven from the other cab, returning North to Middlesbrough, I completely forgot to inform control, not that it was such, that this urgently required them to know about. If they were informed, the contingency plan would have allowed that train to run unrestricted.
6. This contingency plan would not have been of use, because when I arrived in York, the train was used for a different service going the other direction, amazingly no other driver that day reported any problems with that warning horn used in the same cab!
Contingency Plans:-
Warning Horn: In Service Actions:
Partially Defective, Train may complete its journey
One tone failed in an active cab
The cab being used to drive the train to Middlesbrough was not an active cab, where there was a warning horn failure, therefore this train would have continued its journey regardless of what previously occurred.
7. There was also the confusion caused by the set swap at York, see 7, 2 , (13) below.
6. Mr Webb has very strong feelings about safety on trains. He has had very unfortunate experiences in the past when he has seen the results of unsafe practises on the railways. It is a mystery to us as to why he did not see that his priority that morning should have been to make that telephone call.
WHAT SHOULD HAVE BEEN TAKEN INTO ACCOUNT
1. I made a decision that morning based on all my previous experience and knowledge of this type of fault. Why delay a service when the fault is not going to cause a problem with the running of the train?
2. If I had of reached TPE Control, like had had done in the past, their response would have been, train can continue at line speed (100mph). They never once took any train out of service for a partial failure of the warning horn, not once.
Contingency plans allow this train to run, I was fully aware of this, I did attempt to reach control, but the calls failed, in my mind, my priority then was to keep this train on time and regularly check the warning horn to make sure the failure does not become a complete failure. I had behaved exactly the same as this numerous times in the past.
3. At one of my case management meetings I explained to Judge Grazin that TPE ignored all my reports, I produced over 150 and said that there was more, the Judge told me to present 20 reports and TPE had to show their responses. Not surprisingly TPE could not provide any proof that they responded to even one report.
The Response from TPE was, "No response or comments provided to the claimant by the respondent". Once again just sheer IGNORANCE.
4. TPE were never interested in what I had to say from a health and safety perspective, I complained about numerous unsafe practises, but was always ignored. Take Summit Tunnel for instance.
See the section on Summit Tunnel. ONLY LUCK PREVENTED DEATHS! TPE HAD A "NEAR MISS" THIS TIME, WHAT HAPPENS NEXT TIME?
5. If TPE had taken any notice of what I had to say, then the derailment in Summit Tunnel would never have happened, I told them that this would happen and how to stop this happening years before it occurred. The following statements are from my reports.
“The build of ice on the floor could possibly cause damage or worst case scenario, derailment”.
“I would like to suggest that TPE liaise with Network Rail to work out a contingency plan during freezing weather conditions, especially when traffic is light”.
“The standing water and leaks along the walls freeze, it wouldn`t take much of a build up to cause problems”.
“A build up of standing water, freezing, represents a serious danger”.
”Trains using tunnels one hour or more after the last train went through should go through at caution, checking the tunnel”.
7. During the course of that journey, Mr Webb completed a defect Report Form reporting the fault with the horn and reporting a fault with the windscreen wiper and reporting a noisy cab. That Defect Report Form should have been faxed through to the respondents. He forgot to do that. He left it in his cab when he left the train at York. By the time he got to York his horn was fully functional and so he decided that there was no need to report it.
WHAT SHOULD HAVE BEEN TAKEN INTO ACCOUNT
1. I have failed on numerous occasions just like the rest of train crew to fax a defect sheet, some locations we arrive at don`t have fax machines available. Sometimes the fax machine is broken. It is possible to start a shift and have a defect sheet filled out within the first hour of your job, then work through your shift without access to a fax machine, by the time you get back to your depot, 10 hours could have elapsed.
The Response from TPE was, "No response or comments provided to the claimant by the respondent". Once again just sheer IGNORANCE.
4. TPE were never interested in what I had to say from a health and safety perspective, I complained about numerous unsafe practises, but was always ignored. Take Summit Tunnel for instance.
See the section on Summit Tunnel. ONLY LUCK PREVENTED DEATHS! TPE HAD A "NEAR MISS" THIS TIME, WHAT HAPPENS NEXT TIME?
5. If TPE had taken any notice of what I had to say, then the derailment in Summit Tunnel would never have happened, I told them that this would happen and how to stop this happening years before it occurred. The following statements are from my reports.
“The build of ice on the floor could possibly cause damage or worst case scenario, derailment”.
“I would like to suggest that TPE liaise with Network Rail to work out a contingency plan during freezing weather conditions, especially when traffic is light”.
“The standing water and leaks along the walls freeze, it wouldn`t take much of a build up to cause problems”.
“A build up of standing water, freezing, represents a serious danger”.
”Trains using tunnels one hour or more after the last train went through should go through at caution, checking the tunnel”.
7. During the course of that journey, Mr Webb completed a defect Report Form reporting the fault with the horn and reporting a fault with the windscreen wiper and reporting a noisy cab. That Defect Report Form should have been faxed through to the respondents. He forgot to do that. He left it in his cab when he left the train at York. By the time he got to York his horn was fully functional and so he decided that there was no need to report it.
WHAT SHOULD HAVE BEEN TAKEN INTO ACCOUNT
1. I have failed on numerous occasions just like the rest of train crew to fax a defect sheet, some locations we arrive at don`t have fax machines available. Sometimes the fax machine is broken. It is possible to start a shift and have a defect sheet filled out within the first hour of your job, then work through your shift without access to a fax machine, by the time you get back to your depot, 10 hours could have elapsed.
_ 2. If I had been allowed to read my witness statement and if the 3 Judges had bothered to read it, especially Judge Burton then he would have seen that I stated it was a genuine oversight in not faxing the sheet to control. (13. From my Witness Statement), does this oversight warrant gross misconduct?
13. “With the delay caused and all the confusion I had little time left before my next service arrived, going back to Newcastle. I needed the toilet and a drink, I completely forgot to fax the repair sheet to control, a genuine oversight. On finishing work I wrote a report about the noise in the cab. The other 2 issues of the horn and wipers required a more thorough report therefore I needed time to compile this report”.
3. This type of defect occurred every single day in cold and damp weather, the fact that in my opinion the rise in temperature that day enabled the warning horn to start functioning normally meant that even if I did report this to control. It would have made no difference to how and where they ran that service, it never did, my experience told me this. (7. From my Witness Statement).
7."Between Northallerton and York I used the warning horn on 8 occasions, although I would like to add that from what I remember, I thought that I used the horn on many more occasions. Alarmingly, if I am not mistaken then the use of the horn failed to show up on the download".
"In the beginning the horn behaved as previously only this time the high tone worked and the low tone failed. Finally on the approach to York both tones of the horn started working, in my experience this was due to the rise in temperature. None of the above information was enquired about or asked in the investigatory interviews or used in the investigation".
4. "He left it in his cab when he left the train at York", Judge Burton is wrong, I didn't leave it in the cab, it was placed in my driver's bag.
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.
WHAT SHOULD HAVE BEEN TAKEN INTO ACCOUNT
1.The so called “urgent” investigation was a phone call from TPE control to Network Rail asking if York signal box had anything in their log between two certain times if a driver had reported a near miss, the response would have been almost immediate that nothing had been reported. The timescales of this so called urgent investigation can be found in the investigation report compiled by Manager Stephen Percival, it takes around 20 minutes.
13. “With the delay caused and all the confusion I had little time left before my next service arrived, going back to Newcastle. I needed the toilet and a drink, I completely forgot to fax the repair sheet to control, a genuine oversight. On finishing work I wrote a report about the noise in the cab. The other 2 issues of the horn and wipers required a more thorough report therefore I needed time to compile this report”.
3. This type of defect occurred every single day in cold and damp weather, the fact that in my opinion the rise in temperature that day enabled the warning horn to start functioning normally meant that even if I did report this to control. It would have made no difference to how and where they ran that service, it never did, my experience told me this. (7. From my Witness Statement).
7."Between Northallerton and York I used the warning horn on 8 occasions, although I would like to add that from what I remember, I thought that I used the horn on many more occasions. Alarmingly, if I am not mistaken then the use of the horn failed to show up on the download".
"In the beginning the horn behaved as previously only this time the high tone worked and the low tone failed. Finally on the approach to York both tones of the horn started working, in my experience this was due to the rise in temperature. None of the above information was enquired about or asked in the investigatory interviews or used in the investigation".
4. "He left it in his cab when he left the train at York", Judge Burton is wrong, I didn't leave it in the cab, it was placed in my driver's bag.
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.
WHAT SHOULD HAVE BEEN TAKEN INTO ACCOUNT
1.The so called “urgent” investigation was a phone call from TPE control to Network Rail asking if York signal box had anything in their log between two certain times if a driver had reported a near miss, the response would have been almost immediate that nothing had been reported. The timescales of this so called urgent investigation can be found in the investigation report compiled by Manager Stephen Percival, it takes around 20 minutes.
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.
WHAT SHOULD HAVE BEEN TAKEN INTO ACCOUNT
1. The Respondent (Barry Cook) took the view that I had committed 3 disciplinary offences.
(1) On Wednesday 14th January you failed to follow the correct procedure for reporting a defective warning horn.
Please, anyone, show me how the above charge could possibly originate from the investigation report. Why is it non specific, is it a Complete or Partial failure? How is this deemed as gross misconduct?
The investigation never looked into the warning horn failure, there is no mention of how this warning horn behaved on that morning in question. So where did my charge above originate from? This is why the charge fails to name the specific rule book prefix of which rule I supposedly failed to follow.
(2) You also failed to follow the correct procedure for reporting a near miss incident, resulting in a train being taken out of service. You subsequently admitted that this was a false allegation.
There is no written procedure for reporting a near miss, even if there was such a procedure how could I possibly report something that never happened? The train was not taken out of service, it completed its days work until it came out of service at the end of the day. I readily admitted immediately that the near miss never occurred. How can this be deemed gross misconduct?
(3) You failed to follow the correct procedure for reporting unit defects.
Is this really so bad that it warranted gross misconduct? Every single driver on TPE is guilty of this and I can prove it.
2. As we can see by this passage alone, as stated by Judge Burton."He had failed to follow the rulebook in relation to stopping his train and reporting the fault in relation to the horn", the LIES of both Managers certainly worked, Judge Burton believes that the Rule Book says for a PARTIAL FAILURE of the warning horn that I should have STOPPED the train. So Judge Burton makes his judgment on an assumption that is clearly not factual and is fundamentally WRONG.
10. Disciplinary proceedings were delayed as Mr Webb was ill. The respondent however obtained a report from the Occupational Health Department who confirmed he was fit enough to deal with the disciplinary hearing and it took place on the 30th June.
WHAT SHOULD HAVE BEEN TAKEN INTO ACCOUNT
1. The respondent obtains a report from a medical practice that the respondent pays money to, for their services. What is also relevant here, is the fact that TPE actually take notice of this Doctor, yet back in 2004 they totally IGNORED Doctor Pearlman's diagnosis. See the section, "Events of 2004".
WHAT SHOULD HAVE BEEN TAKEN INTO ACCOUNT
1. The Respondent (Barry Cook) took the view that I had committed 3 disciplinary offences.
(1) On Wednesday 14th January you failed to follow the correct procedure for reporting a defective warning horn.
Please, anyone, show me how the above charge could possibly originate from the investigation report. Why is it non specific, is it a Complete or Partial failure? How is this deemed as gross misconduct?
The investigation never looked into the warning horn failure, there is no mention of how this warning horn behaved on that morning in question. So where did my charge above originate from? This is why the charge fails to name the specific rule book prefix of which rule I supposedly failed to follow.
(2) You also failed to follow the correct procedure for reporting a near miss incident, resulting in a train being taken out of service. You subsequently admitted that this was a false allegation.
There is no written procedure for reporting a near miss, even if there was such a procedure how could I possibly report something that never happened? The train was not taken out of service, it completed its days work until it came out of service at the end of the day. I readily admitted immediately that the near miss never occurred. How can this be deemed gross misconduct?
(3) You failed to follow the correct procedure for reporting unit defects.
Is this really so bad that it warranted gross misconduct? Every single driver on TPE is guilty of this and I can prove it.
2. As we can see by this passage alone, as stated by Judge Burton."He had failed to follow the rulebook in relation to stopping his train and reporting the fault in relation to the horn", the LIES of both Managers certainly worked, Judge Burton believes that the Rule Book says for a PARTIAL FAILURE of the warning horn that I should have STOPPED the train. So Judge Burton makes his judgment on an assumption that is clearly not factual and is fundamentally WRONG.
10. Disciplinary proceedings were delayed as Mr Webb was ill. The respondent however obtained a report from the Occupational Health Department who confirmed he was fit enough to deal with the disciplinary hearing and it took place on the 30th June.
WHAT SHOULD HAVE BEEN TAKEN INTO ACCOUNT
1. The respondent obtains a report from a medical practice that the respondent pays money to, for their services. What is also relevant here, is the fact that TPE actually take notice of this Doctor, yet back in 2004 they totally IGNORED Doctor Pearlman's diagnosis. See the section, "Events of 2004".
_ 2. Doctor David G Thomas said the following, “At the moment he is not fit to return to work, but I am unable to predict how soon his health will be restored”. “There was clear evidence of anxiety and depression today" (25th June 2009).
Being in this frame of mind, could anyone do themselves justice in a hearing that impacts the rest of their life? The only way TPE get around this is because they know that the Doctor will and did write the following, “There is no medical reason to prevent you continuing with the conduct hearing”. What happened to the “clear evidence of anxiety and depression”? My own Doctor said she would in the same circumstances, have said that I was unfit to undertake a conduct hearing. (see 1 above for your answer).
There is clearly a conflict of interest between the diagnosis, what TPE want to hear and the business retaining TPE as a customer. "Clear evidence of anxiety and depression", has to be a major handicap to anyone put under the pressure of such a high calibre meeting.
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.
WHAT SHOULD HAVE BEEN TAKEN INTO ACCOUNT
1. This is where the Judges made their GREATEST ERRORS OF JUDGMENT, they listened to Solicitor Simon Robinson tell the tribunal that I was disobedient and that I never apologised, if I had of apologised and said I would abide by the rules they would have imposed a lesser sanction. They ignored what I tried to tell them, yet my witness statement explained the above with dialogue that was made and was recorded in the written minutes.
FAILING TO COMPLY WITH THAT RULE, COMPLYING WITH SUCH RULES
AND AN INTENTION TO COMPLY WITH SUCH RULES IN THE FUTURE
1. Where was I ever charged with failing to comply with “that” rule at my disciplinary hearing? I was supposedly charged with, “Failing to follow the correct procedure for reporting a defective warning horn”. But as I am about to point out, the hearing officer, Mark Atkinson didn`t understand what happened on the day in question because the investigation report did not mention or highlight anything about the defective warning horn.
2. Mark Atkinson said, “In relation to the charges, number one, on Wednesday 14th January you failed to follow the correct procedure for reporting a defective warning horn.
That in mind,
(a) you didn`t stop and report it at the controlling signaller,
(b) you didn`t report it to the train operating company control,
(c) at no point did you reduce the train speed,
(d) you didn`t complete the repair book procedure correctly,
Being in this frame of mind, could anyone do themselves justice in a hearing that impacts the rest of their life? The only way TPE get around this is because they know that the Doctor will and did write the following, “There is no medical reason to prevent you continuing with the conduct hearing”. What happened to the “clear evidence of anxiety and depression”? My own Doctor said she would in the same circumstances, have said that I was unfit to undertake a conduct hearing. (see 1 above for your answer).
There is clearly a conflict of interest between the diagnosis, what TPE want to hear and the business retaining TPE as a customer. "Clear evidence of anxiety and depression", has to be a major handicap to anyone put under the pressure of such a high calibre meeting.
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.
WHAT SHOULD HAVE BEEN TAKEN INTO ACCOUNT
1. This is where the Judges made their GREATEST ERRORS OF JUDGMENT, they listened to Solicitor Simon Robinson tell the tribunal that I was disobedient and that I never apologised, if I had of apologised and said I would abide by the rules they would have imposed a lesser sanction. They ignored what I tried to tell them, yet my witness statement explained the above with dialogue that was made and was recorded in the written minutes.
FAILING TO COMPLY WITH THAT RULE, COMPLYING WITH SUCH RULES
AND AN INTENTION TO COMPLY WITH SUCH RULES IN THE FUTURE
1. Where was I ever charged with failing to comply with “that” rule at my disciplinary hearing? I was supposedly charged with, “Failing to follow the correct procedure for reporting a defective warning horn”. But as I am about to point out, the hearing officer, Mark Atkinson didn`t understand what happened on the day in question because the investigation report did not mention or highlight anything about the defective warning horn.
2. Mark Atkinson said, “In relation to the charges, number one, on Wednesday 14th January you failed to follow the correct procedure for reporting a defective warning horn.
That in mind,
(a) you didn`t stop and report it at the controlling signaller,
(b) you didn`t report it to the train operating company control,
(c) at no point did you reduce the train speed,
(d) you didn`t complete the repair book procedure correctly,
(a). The reason being is that rule book TW5, section 37, doesn`t say this, MA is not aware of the facts surrounding this case, the question here is why not? MA is charging me with something that never happened. This is where the investigation failed, or as is plainly obvious in that what I explained was ignored because TPE had only one thing on their mind and that was to dismiss me. Charge unfounded.
A further and very relevant point to make on this charge is that when I received the disciplinary hearing outcome letter from MA, he makes no mention that I never contacted the signaller, only that I didn`t report it to control. I find this further proof of trying to make anything possible stick against me.
(b). Hardly the crime of the century, but as I have shown, I am not the only one who forgets. But at least I did attempt to inform control and as I have shown, it was only due to confusion and time restraints that I forgot. The DOM on duty would have verified all the confusion and time it took to sort out, so would the timings of both trains, but neither obtained.
(c). TW5, section 37, does not tell me to reduce speed for a partial failure of the warning horn, again this charge is unfounded. It would have helped if Barry Cook when leveling those charges against me had actually taken time to quote which rule had been broken. Because it`s extremely evident that this is being made up as we go along. Charge unfounded.
(d). It remained in service because every other driver found it safe to run. I knew it was safe to run, I have come across these problems so many times I was familiar with what control would say and this is proven in the (DOTE) Defective On Train Contingency Plans, , that train was safe to finish its journey. Charge unfounded
How could I have possibly acknowledged at my disciplinary hearing that I had failed to comply with that “rule”? When Mark Atkinson is charging me with a complete failure of the warning horn when this was not the case.
3. All the way through my interrogation, (I have an audio player, in the section, Hearing 30th June 2009, that proves my hearing was an interrogation), Mark Atkinson is of the opinion that I had a complete failure of the warning horn which is completely untrue. He makes his decision to dismiss on this issue. Despite being told on numerous occasions that I had a PARTIAL FAILURE of the warning horn.
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 (a) when 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.
A further and very relevant point to make on this charge is that when I received the disciplinary hearing outcome letter from MA, he makes no mention that I never contacted the signaller, only that I didn`t report it to control. I find this further proof of trying to make anything possible stick against me.
(b). Hardly the crime of the century, but as I have shown, I am not the only one who forgets. But at least I did attempt to inform control and as I have shown, it was only due to confusion and time restraints that I forgot. The DOM on duty would have verified all the confusion and time it took to sort out, so would the timings of both trains, but neither obtained.
(c). TW5, section 37, does not tell me to reduce speed for a partial failure of the warning horn, again this charge is unfounded. It would have helped if Barry Cook when leveling those charges against me had actually taken time to quote which rule had been broken. Because it`s extremely evident that this is being made up as we go along. Charge unfounded.
(d). It remained in service because every other driver found it safe to run. I knew it was safe to run, I have come across these problems so many times I was familiar with what control would say and this is proven in the (DOTE) Defective On Train Contingency Plans, , that train was safe to finish its journey. Charge unfounded
How could I have possibly acknowledged at my disciplinary hearing that I had failed to comply with that “rule”? When Mark Atkinson is charging me with a complete failure of the warning horn when this was not the case.
3. All the way through my interrogation, (I have an audio player, in the section, Hearing 30th June 2009, that proves my hearing was an interrogation), Mark Atkinson is of the opinion that I had a complete failure of the warning horn which is completely untrue. He makes his decision to dismiss on this issue. Despite being told on numerous occasions that I had a PARTIAL FAILURE of the warning horn.
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 (a) when 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.
5. I readily admitted at my hearing that I had treated this rule the same way before, I said, “You know I am the type of person that had done this before, if I were jumped on before and warned and we come to an understanding then this would never have happened”, yet I supposedly never demonstrated an intention never to comply with such rules in the future!
6. I also highlighted and supplied proof that other drivers had behaved in the same way as myself in how they interpreted the rules with some actually ignoring complete failures of the warning horn, which is far, far worse than what I had supposedly been charged with, I still have this proof, (see the section "Warning Horns (The Shocking Truth)". Why after I supplied my evidence wasn`t any other driver charged? Equity?
7. I supposedly failed to follow correct procedures, yet TPE didn`t understand their own procedures, I was charged with failing to report a near miss using the correct procedures, so I requested from TPE a copy of this near miss procedure, the response that I got was that it was in the rule book, I knew it wasn`t and requested it again, this time I was told it was in the Driver Competence Standards booklet, which is was not, so here I am being given a charge of gross misconduct for a procedure that they cannot supply me with.
8. Regarding my supposed failure and non intention to comply with the rules, the following is a transcript from my appeal hearing.
PaulW. “The first point of clarification for me is, in terms of reporting the partial failure, your case today is definitely that you feel you have applied the rule book in terms of you attempted to report it twice via the cab radio at the most convenient opportunity”.
PerryW. “The most convenient chance”.
PaulW. “At the first convenient opportunity”.
PerryW. ”Yes”.
6. I also highlighted and supplied proof that other drivers had behaved in the same way as myself in how they interpreted the rules with some actually ignoring complete failures of the warning horn, which is far, far worse than what I had supposedly been charged with, I still have this proof, (see the section "Warning Horns (The Shocking Truth)". Why after I supplied my evidence wasn`t any other driver charged? Equity?
7. I supposedly failed to follow correct procedures, yet TPE didn`t understand their own procedures, I was charged with failing to report a near miss using the correct procedures, so I requested from TPE a copy of this near miss procedure, the response that I got was that it was in the rule book, I knew it wasn`t and requested it again, this time I was told it was in the Driver Competence Standards booklet, which is was not, so here I am being given a charge of gross misconduct for a procedure that they cannot supply me with.
8. Regarding my supposed failure and non intention to comply with the rules, the following is a transcript from my appeal hearing.
PaulW. “The first point of clarification for me is, in terms of reporting the partial failure, your case today is definitely that you feel you have applied the rule book in terms of you attempted to report it twice via the cab radio at the most convenient opportunity”.
PerryW. “The most convenient chance”.
PaulW. “At the first convenient opportunity”.
PerryW. ”Yes”.
_
PaulW. “Do you think that the actions of therefore trying it again, next place up, I think you said
Northallerton”.
PerryW. “That’s right, that’s where I stopped next”.
PaulW. ”Do you think that meets the requirements of that section of the rule book”?
PerryW. “Yes”.
PaulW. “Ok”.
PerryW. “That’s my interpretation of the rule book”. “The word convenient is what I am going at, nothing else”. “and I don`t like using the cab radio when I am on the move”.
PaulW. “No”?
PerryW. “Its distracting, I stopped first at Darlington then Northallerton and that is why I saw them as convenient places”.
PaulW. “Partial failure, clearly in there it says stop where convenient and report to control. What I am saying is at that point of I have a defective warning horn because for part of that journey even if I take your point, (very garbled text, possibly indicating that horn worked half of the time), and the two stops where you attempted to use the cab radio the contact was defective, the question that I would ask, why at those stops did you not use another method of communication”?
PerryW. “Basically, well basically it doesn`t say that in the rule book, but at Darlington, if you know Darlington when you come into Darlington there is no way that I could get to a telephone in time without delaying the train and when you actually run in there sometimes the GNER staff which happened this day had already pressed the plunger, the signal was green and main, there`s just no time to do it.
PaulW. “Ok”.
PerryW. “That’s the only reason”.
PaulW. “Do you think that the actions of therefore trying it again, next place up, I think you said
Northallerton”.
PerryW. “That’s right, that’s where I stopped next”.
PaulW. ”Do you think that meets the requirements of that section of the rule book”?
PerryW. “Yes”.
PaulW. “Ok”.
PerryW. “That’s my interpretation of the rule book”. “The word convenient is what I am going at, nothing else”. “and I don`t like using the cab radio when I am on the move”.
PaulW. “No”?
PerryW. “Its distracting, I stopped first at Darlington then Northallerton and that is why I saw them as convenient places”.
PaulW. “Partial failure, clearly in there it says stop where convenient and report to control. What I am saying is at that point of I have a defective warning horn because for part of that journey even if I take your point, (very garbled text, possibly indicating that horn worked half of the time), and the two stops where you attempted to use the cab radio the contact was defective, the question that I would ask, why at those stops did you not use another method of communication”?
PerryW. “Basically, well basically it doesn`t say that in the rule book, but at Darlington, if you know Darlington when you come into Darlington there is no way that I could get to a telephone in time without delaying the train and when you actually run in there sometimes the GNER staff which happened this day had already pressed the plunger, the signal was green and main, there`s just no time to do it.
PaulW. “Ok”.
PerryW. “That’s the only reason”.
PaulW. “And all I am saying is at this stage we have got a partially defective warning horn, there are other methods of communication, there are phone conversations, the conductor on the train has a phone, there are signal post telephones, there are a number of ways for raising that issue for the duration of the time that the horn was partially defective, all of which you elected not to use.
PerryW. “Again, it was intermittent, Paul, it works then it doesn`t, then it works, then it doesn`t, and I went by what the actual wording of that rule book said”.
PaulW. “Ok”.
PerryW. “If it had said by any expeditious means whatever, then obviously I would have to think of the mobile phone with the conductor, but again you know what it’s like when you are not allowed to use a mobile phone, you are in an awkward situation”.
The following is transcript which appeared later in my appeal hearing.
PaulW. “In terms of reporting and you yourself this afternoon have referred to this as you did in the hearing about the provisions of the rule book for a partially defective horn not obviously a defective horn and you say as quite rightly to stop at the first convenient opportunity.
Just for clarity I will, I don`t normally read these things through but I will for clarity on this occasion. You must stop your train at the first opportunity, convenient opportunity, when you become aware of a defect on the following equipment and tell the train operators control. And there is a list of things of which warning horn partial failure is formed as one.
The first convenient opportunity may include the next schedule station or other stopping point in the journey, or when detained at a signal following a stop aspect. If reporting the defect will cause delay, you must tell the signaler the reason for the delay.
That actually in totality what is says. What Perry has said he has done, is use the cab radio on two separate locations and for reasons of static, bad connection or whatever could not get through. So did he report it, no he didn`t, Do I believe that there is other opportunity to report. Theres signal post telephones at locations, theres telephones on the platforms, theres a telephone with the conductor”.
PerryW. “Again, it was intermittent, Paul, it works then it doesn`t, then it works, then it doesn`t, and I went by what the actual wording of that rule book said”.
PaulW. “Ok”.
PerryW. “If it had said by any expeditious means whatever, then obviously I would have to think of the mobile phone with the conductor, but again you know what it’s like when you are not allowed to use a mobile phone, you are in an awkward situation”.
The following is transcript which appeared later in my appeal hearing.
PaulW. “In terms of reporting and you yourself this afternoon have referred to this as you did in the hearing about the provisions of the rule book for a partially defective horn not obviously a defective horn and you say as quite rightly to stop at the first convenient opportunity.
Just for clarity I will, I don`t normally read these things through but I will for clarity on this occasion. You must stop your train at the first opportunity, convenient opportunity, when you become aware of a defect on the following equipment and tell the train operators control. And there is a list of things of which warning horn partial failure is formed as one.
The first convenient opportunity may include the next schedule station or other stopping point in the journey, or when detained at a signal following a stop aspect. If reporting the defect will cause delay, you must tell the signaler the reason for the delay.
That actually in totality what is says. What Perry has said he has done, is use the cab radio on two separate locations and for reasons of static, bad connection or whatever could not get through. So did he report it, no he didn`t, Do I believe that there is other opportunity to report. Theres signal post telephones at locations, theres telephones on the platforms, theres a telephone with the conductor”.
PerryW. “All it says is report it to control, not the signaler”.
PaulW. “But you can report it to control via the signal box, so effectively what I am saying to you is only my opinion, but you have said to me how important you view this in terms of a safety equipment failure and you believe that fulfills, so if you ask the questions do you believe that fulfills what we call the rule book, two failed cab radio calls, do you think that’s sufficient and Perry to be fair said yes he does, I`m saying I don`t believe it is by a long way”.
PerryW. “But I only went by the wording of what I read, that would then suggest that that needs altering”.
Continued yet again later in the appeal hearing.
PaulW. “The reason why I am making the point is that because it clearly says you must stop and tell your control when it’s convenient, when the convenient opportunity arises, you have become aware of the defect then it gives a list of defects, then it says what the convenient opportunity might be, which includes the next scheduled station stop or a stopping point on the journey or when the train is at a signal with a stop aspect. If reporting the defect causes delay you must tell the signaler the reason for delay. So even accepting delay to the service, safety comes first, that’s what is here, to be fair in your defence earlier you said, you didn`t want to cause delay”.
PerryW.”Obviously my interpretation is different from what I read, but like I say, you would have thought that that would have been briefed into us”.
PaulW. “Well its part of the rule book”.
PerryW. “I interpreted it different, that was all”.
Continued again later in the appeal hearing.
PaulW. “I`m saying in terms of the rule book and what it requires for partial defects. Do I think two attempts on a cab radio is reasonable to discharge the responsibility in that rule book? No I don`t”.
PaulW. “But you can report it to control via the signal box, so effectively what I am saying to you is only my opinion, but you have said to me how important you view this in terms of a safety equipment failure and you believe that fulfills, so if you ask the questions do you believe that fulfills what we call the rule book, two failed cab radio calls, do you think that’s sufficient and Perry to be fair said yes he does, I`m saying I don`t believe it is by a long way”.
PerryW. “But I only went by the wording of what I read, that would then suggest that that needs altering”.
Continued yet again later in the appeal hearing.
PaulW. “The reason why I am making the point is that because it clearly says you must stop and tell your control when it’s convenient, when the convenient opportunity arises, you have become aware of the defect then it gives a list of defects, then it says what the convenient opportunity might be, which includes the next scheduled station stop or a stopping point on the journey or when the train is at a signal with a stop aspect. If reporting the defect causes delay you must tell the signaler the reason for delay. So even accepting delay to the service, safety comes first, that’s what is here, to be fair in your defence earlier you said, you didn`t want to cause delay”.
PerryW.”Obviously my interpretation is different from what I read, but like I say, you would have thought that that would have been briefed into us”.
PaulW. “Well its part of the rule book”.
PerryW. “I interpreted it different, that was all”.
Continued again later in the appeal hearing.
PaulW. “I`m saying in terms of the rule book and what it requires for partial defects. Do I think two attempts on a cab radio is reasonable to discharge the responsibility in that rule book? No I don`t”.
_ PerryW. “They were the two next stopping places, there was no other stoppages along there, I had no reason to stop out of course at a signalpost phone or anything, I had green signals all the way, green signal at Darlington, green signal at Northallerton”.
PaulW. “But having stopped the train you had more than one opportunity did you not to use any phone available so that you could speak to our control, but you didn`t, you didn`t”.
PerryW. “Well no, because I couldn`t find a phone in time, I mean think about it”.
PaulW. “Well with respect”.
PerryW. “Do you know the layout of Darlington and Northallerton”?
PaulW. “I think that’s a nonsense”.
PerryW. “The rule book, I went exactly by what it said, convenient, stopping places, there was two, that’s what I did”.
PaulW. “Do I believe that discharged the rule book? No I don`t”.
PaulW. “Do I believe Perry would know to go and speak with his demons of the past is what I come to. Do I think not getting on the phone is by chance or something else. You ask me why you’ve never been told not to do it before. I`m not using previous disciplines”. Do I think you followed the correct procedure, do I think actions reasonable,
I’ve decided to uphold the original decision”. (which is below).
(MA 395) MA “It is my belief that this charge is proven that on the day in question you did fail to follow the correct procedure. The unit stayed in service was putting the safety of staff on the railway at risk”.
Another Mark Atkinson LIE, "The unit stayed in service was putting the safety of staff on the railway at risk". (PERJURY)
As you will have seen, this all boils down to the interpretation of the rule book, I never previously treated this ruling any different, and always behaved in the same way and with the same interpretation and approach to this rule, why wasn`t this picked up previously? Every other driver behaved the same way. Is this therefore really something that warranted gross misconduct or is it a simple training issue?
Human Factors should come into play, because as I said, all other Drivers behaved the same way or worse, therefore if this happened with this individual ruling, what about all the others?
Alarm bells should have been ringing!
Quite clearly TPE realised that something was wrong procedurally because the only recommendation to come out of their investigation was worded as follows.
“10.1 FTPE Operations Standards Department to incorporate the correct reporting procedure into safety briefs”.
Amazingly, you would have thought that FTPE would have implemented their recommendation, yet I have 12 email responses from drivers who said this recommendation was not incorporated into their safety briefs, some never even had a safety brief!
PaulW. “But having stopped the train you had more than one opportunity did you not to use any phone available so that you could speak to our control, but you didn`t, you didn`t”.
PerryW. “Well no, because I couldn`t find a phone in time, I mean think about it”.
PaulW. “Well with respect”.
PerryW. “Do you know the layout of Darlington and Northallerton”?
PaulW. “I think that’s a nonsense”.
PerryW. “The rule book, I went exactly by what it said, convenient, stopping places, there was two, that’s what I did”.
PaulW. “Do I believe that discharged the rule book? No I don`t”.
PaulW. “Do I believe Perry would know to go and speak with his demons of the past is what I come to. Do I think not getting on the phone is by chance or something else. You ask me why you’ve never been told not to do it before. I`m not using previous disciplines”. Do I think you followed the correct procedure, do I think actions reasonable,
I’ve decided to uphold the original decision”. (which is below).
(MA 395) MA “It is my belief that this charge is proven that on the day in question you did fail to follow the correct procedure. The unit stayed in service was putting the safety of staff on the railway at risk”.
Another Mark Atkinson LIE, "The unit stayed in service was putting the safety of staff on the railway at risk". (PERJURY)
As you will have seen, this all boils down to the interpretation of the rule book, I never previously treated this ruling any different, and always behaved in the same way and with the same interpretation and approach to this rule, why wasn`t this picked up previously? Every other driver behaved the same way. Is this therefore really something that warranted gross misconduct or is it a simple training issue?
Human Factors should come into play, because as I said, all other Drivers behaved the same way or worse, therefore if this happened with this individual ruling, what about all the others?
Alarm bells should have been ringing!
Quite clearly TPE realised that something was wrong procedurally because the only recommendation to come out of their investigation was worded as follows.
“10.1 FTPE Operations Standards Department to incorporate the correct reporting procedure into safety briefs”.
Amazingly, you would have thought that FTPE would have implemented their recommendation, yet I have 12 email responses from drivers who said this recommendation was not incorporated into their safety briefs, some never even had a safety brief!
EXPRESSING REMORSE
1. You need to listen to the audio disc of my hearing, I have never experienced a manager behaving how Mark Atkinson did that afternoon. He clearly never approached this hearing with an open mind, his anger was unbelievable, he charged me with the wrong rule, even though I made it plainly obvious to him what type of warning horn failure I had, therefore I was not in any position to show remorse for something I hadn`t done especially facing the hostility this man was showing.
2. I did however apologise to Paul Watson, I said, “If I offended anyone, I apologise”, this is documented in the minutes.
3. What Paul Watson failed to mention is the following ruling below, which also played a part in my decision on that morning.
Rule Book, Part A, 2.2 Driver reporting a defect.
When you are required to report defective on train equipment, depending on the on train equipment concerned, you must.
Tell the train operators control at the first convenient opportunity (see 1.2b).
If possible you must avoid stopping the train:
On a junction.
At any other place where it might be difficult to deal with the situation.
I would have found it in my mind difficult at both Darlington and Northallerton and also in stopping at Northallerton as I was on a busy junction.
4. Mark Atkinson and Paul Watson were also unfamiliar with the route I was on and didn`t have any knowledge of Darlington or Northallerton.
12. As Mr Robinson points out, during the course of that disciplinary hearing Mr Webb, represented by a Trade Union Representative, came out fighting, he maintained that the only fault lay with the company for allowing trains to be used which suffered from this recurring fault. In our view in contradiction to that strong view he maintained that he decided not to report the fault because it would have been inconvenient to do so. He readily admitted that the alleged near miss was a lie designed to make the Respondents sit up and take note. We do not understand why, if that was the motive, he did not send the report to the respondents.
1. You need to listen to the audio disc of my hearing, I have never experienced a manager behaving how Mark Atkinson did that afternoon. He clearly never approached this hearing with an open mind, his anger was unbelievable, he charged me with the wrong rule, even though I made it plainly obvious to him what type of warning horn failure I had, therefore I was not in any position to show remorse for something I hadn`t done especially facing the hostility this man was showing.
2. I did however apologise to Paul Watson, I said, “If I offended anyone, I apologise”, this is documented in the minutes.
3. What Paul Watson failed to mention is the following ruling below, which also played a part in my decision on that morning.
Rule Book, Part A, 2.2 Driver reporting a defect.
When you are required to report defective on train equipment, depending on the on train equipment concerned, you must.
Tell the train operators control at the first convenient opportunity (see 1.2b).
If possible you must avoid stopping the train:
On a junction.
At any other place where it might be difficult to deal with the situation.
I would have found it in my mind difficult at both Darlington and Northallerton and also in stopping at Northallerton as I was on a busy junction.
4. Mark Atkinson and Paul Watson were also unfamiliar with the route I was on and didn`t have any knowledge of Darlington or Northallerton.
12. As Mr Robinson points out, during the course of that disciplinary hearing Mr Webb, represented by a Trade Union Representative, came out fighting, he maintained that the only fault lay with the company for allowing trains to be used which suffered from this recurring fault. In our view in contradiction to that strong view he maintained that he decided not to report the fault because it would have been inconvenient to do so. He readily admitted that the alleged near miss was a lie designed to make the Respondents sit up and take note. We do not understand why, if that was the motive, he did not send the report to the respondents.
WHAT SHOULD HAVE BEEN TAKEN INTO ACCOUNT
1. All that I am supposedly guilty of from this passage is failing to report the partial failure to control and fax the repair slip to them. This again is common among all drivers, but if I had of reported it to control and faxed the repair slip off it would have made no difference to that trains journey, it would have still left York as it did.
I explained that it was not intentional in not reporting or faxing the repair slip but down to the confusion and time restraints at York before I drove back to Newcastle. How does this warrant a charge of gross misconduct?
Regarding making the respondents sit up and take notice, what is a person supposed to do if they are constantly ignored and TPE blatantly lie to the Health & Safety Executive, which I have proven in the section, Blatant LIES to the HMRI (1) & (2).
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.
WHAT SHOULD HAVE BEEN TAKEN INTO ACCOUNT
1. I never at the time and still don`t believe that I failed to comply with the Rule Book, it is all down to how an individual interprets that rule. My disciplinary hearing was extremely hostile, I had never encountered such an approach from a Manager before.
Mark Atkinson 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.
Also please bear in mind that I was not of sound mind in my hearing, the doctor’s notes prove this. I did however in my appeal hearing say, “if I offended anyone then I apologise”.
14. The appeal against the decision came before Mr Watson. There was another very lengthy appeal hearing. Once again Mr Webb sought to fight his corner, sought to persuade Mr Watson that the fault was not his but it was the company`s and sadly reading Mr Webb`s statement as we have today he is still entirely of that view.
WHAT SHOULD HAVE BEEN TAKEN INTO ACCOUNT
1. The appeal Hearing lasted nine and a half hours. I sought to fight my corner in as much that what I was dismissed for was not what had happened on the day in question. Mark Atkinson had charged me with a complete failure of the warning horn when it was a partial failure and as I demonstrated when questioning Mark Atkinson in front of the judges he still did not know what type of warning horn failure I had encountered that day. After what I encountered with Mark Atkinson I was left with no other option than to fight my corner, the main dispute was over the interpretation of the rule book.
The very first question I asked Mark Atkinson in my tribunal was:- "On that day in question, what type of warning horn failure did that train have"?
What happened next was unreal, Mark Atkinson was speechless, he started to go bright red and then fumbled his way through a pile of paperwork in front of him, quite what he was looking for I have no idea. The silence lasted an eternity, his solicitor butted in and the moment was lost, but Mark Atkinson was totally clueless to the very question that was a major factor in my dismissal and even after taking my hearing and finding me guilty of the charges he did not know what failure of the warning horn I had that morning!
2. Anyone and everyone who works in the rail industry would tell you that even if I was guilty of failing to report a partial failure of the warning horn using the correct procedures this is not and never will be a gross misconduct charge, at the worst it would be a reprimand. You also have to ask yourself how a company can allow trains to run knowing that at any time their warning horns can fail and had known this for the past 3 years.
1. All that I am supposedly guilty of from this passage is failing to report the partial failure to control and fax the repair slip to them. This again is common among all drivers, but if I had of reported it to control and faxed the repair slip off it would have made no difference to that trains journey, it would have still left York as it did.
I explained that it was not intentional in not reporting or faxing the repair slip but down to the confusion and time restraints at York before I drove back to Newcastle. How does this warrant a charge of gross misconduct?
Regarding making the respondents sit up and take notice, what is a person supposed to do if they are constantly ignored and TPE blatantly lie to the Health & Safety Executive, which I have proven in the section, Blatant LIES to the HMRI (1) & (2).
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.
WHAT SHOULD HAVE BEEN TAKEN INTO ACCOUNT
1. I never at the time and still don`t believe that I failed to comply with the Rule Book, it is all down to how an individual interprets that rule. My disciplinary hearing was extremely hostile, I had never encountered such an approach from a Manager before.
Mark Atkinson 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.
Also please bear in mind that I was not of sound mind in my hearing, the doctor’s notes prove this. I did however in my appeal hearing say, “if I offended anyone then I apologise”.
14. The appeal against the decision came before Mr Watson. There was another very lengthy appeal hearing. Once again Mr Webb sought to fight his corner, sought to persuade Mr Watson that the fault was not his but it was the company`s and sadly reading Mr Webb`s statement as we have today he is still entirely of that view.
WHAT SHOULD HAVE BEEN TAKEN INTO ACCOUNT
1. The appeal Hearing lasted nine and a half hours. I sought to fight my corner in as much that what I was dismissed for was not what had happened on the day in question. Mark Atkinson had charged me with a complete failure of the warning horn when it was a partial failure and as I demonstrated when questioning Mark Atkinson in front of the judges he still did not know what type of warning horn failure I had encountered that day. After what I encountered with Mark Atkinson I was left with no other option than to fight my corner, the main dispute was over the interpretation of the rule book.
The very first question I asked Mark Atkinson in my tribunal was:- "On that day in question, what type of warning horn failure did that train have"?
What happened next was unreal, Mark Atkinson was speechless, he started to go bright red and then fumbled his way through a pile of paperwork in front of him, quite what he was looking for I have no idea. The silence lasted an eternity, his solicitor butted in and the moment was lost, but Mark Atkinson was totally clueless to the very question that was a major factor in my dismissal and even after taking my hearing and finding me guilty of the charges he did not know what failure of the warning horn I had that morning!
2. Anyone and everyone who works in the rail industry would tell you that even if I was guilty of failing to report a partial failure of the warning horn using the correct procedures this is not and never will be a gross misconduct charge, at the worst it would be a reprimand. You also have to ask yourself how a company can allow trains to run knowing that at any time their warning horns can fail and had known this for the past 3 years.
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.
WHAT SHOULD HAVE BEEN TAKEN INTO ACCOUNT
1. 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?
2. 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.
3. 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.
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.
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.
FOR FURTHER DETAILS, SEE THE SECTION TITLED, "BURCHELL TEST (LAW)" & "Judge Burton & The Burchell Test".
WHAT SHOULD HAVE BEEN TAKEN INTO ACCOUNT
1. How can the respondents have reasonable belief from charges that were basically generic and not specific, in my hearing I was charged with a complete failure of the warning horn when it should have been a partial failure.
2. The investigation was completely flawed, it went against ACAS guidelines, there was nothing in the investigation that could point out what type of warning horn failure that train had, issues were added to the investigation that were totally irrelevant to quite simply put me down. The investigation was made to measure, my witness statement shows that what I am saying is true.
3. In consideration as to whether the dismissal was a reasonable response, no other person except the individual they want to get rid of would have faced those charges or been dismissed.
4. I admitted the near miss was a lie straight away, and I said why I did this, I never admitted to anything else.
5. The Burchell Test was the only case law mentioned, I would like to point out the following.
WHAT SHOULD HAVE BEEN TAKEN INTO ACCOUNT
1. 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?
2. 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.
3. 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.
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.
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.
FOR FURTHER DETAILS, SEE THE SECTION TITLED, "BURCHELL TEST (LAW)" & "Judge Burton & The Burchell Test".
WHAT SHOULD HAVE BEEN TAKEN INTO ACCOUNT
1. How can the respondents have reasonable belief from charges that were basically generic and not specific, in my hearing I was charged with a complete failure of the warning horn when it should have been a partial failure.
2. The investigation was completely flawed, it went against ACAS guidelines, there was nothing in the investigation that could point out what type of warning horn failure that train had, issues were added to the investigation that were totally irrelevant to quite simply put me down. The investigation was made to measure, my witness statement shows that what I am saying is true.
3. In consideration as to whether the dismissal was a reasonable response, no other person except the individual they want to get rid of would have faced those charges or been dismissed.
4. I admitted the near miss was a lie straight away, and I said why I did this, I never admitted to anything else.
5. The Burchell Test was the only case law mentioned, I would like to point out the following.
In 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."
“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”.
"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".
In Strouthos v London Underground Ltd [2004] IRLR 636 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".
6. My witness statement showed that we didn`t have examples of gross misconduct and that TPE changed their procedures but never issued anyone with a copy. However, I don`t think their procedures would say that the breaking of this particular rule which made no difference to the running of this train would result in gross misconduct.
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”.
Weddell v Tipper [1980] IRLR 96
specifically referred to in the skeleton argument put forward by the appellants today, and in particular the passage at page 101 where the EAT stated: "Employers do not have regard to equity or the substantial merits of the case if they jump to conclusions which it would have been reasonable to postpone in all the circumstances until they had, in the words of the Employment Tribunal in this case, gathered further evidence or, in the words of Mr Justice Arnold in the Burchell case, carried out as much investigation into the matter as was reasonable in all the circumstances of the case.
That means that they must act reasonably in all the circumstances and must make reasonable enquiries appropriate to the circumstances. If they form their belief hastily and act hastily upon it without making the appropriate enquiries or given the employee a fair opportunity to explain himself, their belief is not based on reasonable grounds and they are certainly not acting reasonably."
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.
YORKSHIRE RIDER LTD APPELLANT MR F T NECKLES RESPONDENT
The Employment Tribunal Decision 1 Liability
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.
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.
WHAT SHOULD HAVE BEEN TAKEN INTO ACCOUNT
1. How can I accept that I had done wrong on the interpretation of the Rule Book when I had always behaved this particular way with this rule? Why would I express remorse over something I believe that I was doing the correct way? A willingness to learn? How can someone learn from their supposed mistake if they are dismissed.
So in nearly 25 years as a driver, one mistake means you are dismissed? I pointed out that ongoing training for drivers was at the very least poor, I had since TPE took over only 3 safety brief days in 5 years, the Cullen Report recommendation was 2 per year.
I still stand by my actions because that was how I believed the ruling should be interpreted, management had numerous occasions when they could have said to me I was wrong. If they had told me how they wanted the rule interpreting then I would have abided by their view.
Why did the investigating officer Stephen Percival make his only recommendation to come from the investigation as follows?
“10.1 FTPE Operations Standards Department to incorporate the correct reporting procedure into safety briefs”.
This was done but as I have proven, never implemented because they were all aware that all drivers failed to follow the correct reporting procedures, otherwise why make this recommendation if all drivers report everything correctly? I WAS NOT THE ONLY DRIVER TO BEHAVE THE WAY I DID IN MY REPORTING OF THE WARNING HORN PARTIAL FAILURE THAT DAY. I can prove what I say, I still have the evidence. See the section, "Warning Horns (The Shocking Truth)", evidence is there.
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."
“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”.
"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".
In Strouthos v London Underground Ltd [2004] IRLR 636 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".
6. My witness statement showed that we didn`t have examples of gross misconduct and that TPE changed their procedures but never issued anyone with a copy. However, I don`t think their procedures would say that the breaking of this particular rule which made no difference to the running of this train would result in gross misconduct.
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”.
Weddell v Tipper [1980] IRLR 96
specifically referred to in the skeleton argument put forward by the appellants today, and in particular the passage at page 101 where the EAT stated: "Employers do not have regard to equity or the substantial merits of the case if they jump to conclusions which it would have been reasonable to postpone in all the circumstances until they had, in the words of the Employment Tribunal in this case, gathered further evidence or, in the words of Mr Justice Arnold in the Burchell case, carried out as much investigation into the matter as was reasonable in all the circumstances of the case.
That means that they must act reasonably in all the circumstances and must make reasonable enquiries appropriate to the circumstances. If they form their belief hastily and act hastily upon it without making the appropriate enquiries or given the employee a fair opportunity to explain himself, their belief is not based on reasonable grounds and they are certainly not acting reasonably."
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.
YORKSHIRE RIDER LTD APPELLANT MR F T NECKLES RESPONDENT
The Employment Tribunal Decision 1 Liability
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.
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.
WHAT SHOULD HAVE BEEN TAKEN INTO ACCOUNT
1. How can I accept that I had done wrong on the interpretation of the Rule Book when I had always behaved this particular way with this rule? Why would I express remorse over something I believe that I was doing the correct way? A willingness to learn? How can someone learn from their supposed mistake if they are dismissed.
So in nearly 25 years as a driver, one mistake means you are dismissed? I pointed out that ongoing training for drivers was at the very least poor, I had since TPE took over only 3 safety brief days in 5 years, the Cullen Report recommendation was 2 per year.
I still stand by my actions because that was how I believed the ruling should be interpreted, management had numerous occasions when they could have said to me I was wrong. If they had told me how they wanted the rule interpreting then I would have abided by their view.
Why did the investigating officer Stephen Percival make his only recommendation to come from the investigation as follows?
“10.1 FTPE Operations Standards Department to incorporate the correct reporting procedure into safety briefs”.
This was done but as I have proven, never implemented because they were all aware that all drivers failed to follow the correct reporting procedures, otherwise why make this recommendation if all drivers report everything correctly? I WAS NOT THE ONLY DRIVER TO BEHAVE THE WAY I DID IN MY REPORTING OF THE WARNING HORN PARTIAL FAILURE THAT DAY. I can prove what I say, I still have the evidence. See the section, "Warning Horns (The Shocking Truth)", evidence is there.
18. For a man who says that he has high standards in relation to safety that is a difficult thing for us to understand but from the respondents point of view safety must be the paramount issue for them. We understand that they could not allow a driver to continue to drive their trains who expressed such a cavalier view as to the rules which applied his profession and who believes that he had the option to decide for himself whether he will or will not comply with those rules. We cannot accordingly conclude that dismissal was outside the band of reasonable responses of a reasonable employer.
WHAT SHOULD HAVE BEEN TAKEN INTO ACCOUNT
1. "But from the respondents point of view safety must be the paramount issue for them". Look at this entire website and then ask yourself, is safety really such a "paramount issue", to TransPennine Express Management?
Safety is paramount? Does IGNORANCE inspire SAFETY? The very IGNORANCE from First Group went on to cause the deaths of 9 people after numerous near misses.
2. The only Rule Book wording that applies is the following. It is not a cavalier view taken by me, but my interpretation and understanding of these particular rules, I never changed my approach that day to these rules, I always behaved exactly the same way and still stand by my interpretation.
Rule Book TW5, Part A, 1.2, Reporting defective on train equipment.
1.2 b, Stopping train at the first CONVENIENT opportunity.
You must stop your train at the first CONVENIENT opportunity when you become aware of a defect on the following equipment, (warning horn – partial failure) and tell the train operators control.
The first CONVENIENT opportunity MAY include the next scheduled station or other stopping point on the journey, or when detained at a stop signal showing a stop aspect.
IF reporting the defect will cause delay, you must inform the signaler the reason for the delay.
Rule Book TW5, 37.3 b
Partial failure of the warning horn.
If the warning horn becomes partially defective, (for example, one tone not working) on a train which is in service, you must:
Tell the train operators control at the first CONVENIENT opportunity.
Carry out the instructions given.
Rule Book, Part A, 2.2 Driver reporting a defect.
When you are required to report defective on train equipment, depending on the on train equipment concerned, you must.
Tell the train operators control at the first convenient opportunity (see 1.2b).
If possible you must avoid stopping the train:
On a junction.
At any other place where it might be difficult to deal with the situation.
The key words are CONVENIENT (stop your train at the first CONVENIENT opportunity).
Another key word is MAY (The first CONVENIENT opportunity MAY include the next scheduled station or other stopping point on the journey, or when detained at a stop signal showing a stop aspect).
The final key word is IF (IF reporting the defect will cause delay, you must inform the signaler the reason for the delay).
CONVENIENT: Suitable or favorable to one`s comfort, purpose or needs.
MAY: Used to indicate a certain measure of likelihood or possibility.
IF: In the event that.
All of these 3 key words do not express a mandatory outcome, they are open to a person`s interpretation. If TPE management require drivers to comply to their interpretation of these rules then they should make it known and because in their eyes any other interpretation other than theirs warrants dismissal they should strive to get the wording of this ruling re-worded.
To this day, those rules are still open to interpretation. Drivers are still failing to report defects using the correct procedures and I can prove this with information I have.
Nearly 25 years as a driver with a clean record, no serious transgression of rules, no signals passed at danger, yet one minor blip, one instance of a rules violation that is still open to interpretation and I am dismissed, at the worst case scenario this was a training issue, if I had been allowed to defend myself by reading out my witness statement it would have become apparent that I was dismissed for an ulterior motive, many people out there know this and no doubt one day someone will have the guts to stand up to the TPE bullies.
Perry Webb.
I WILL NEVER GIVE UP.
WHAT SHOULD HAVE BEEN TAKEN INTO ACCOUNT
1. "But from the respondents point of view safety must be the paramount issue for them". Look at this entire website and then ask yourself, is safety really such a "paramount issue", to TransPennine Express Management?
Safety is paramount? Does IGNORANCE inspire SAFETY? The very IGNORANCE from First Group went on to cause the deaths of 9 people after numerous near misses.
2. The only Rule Book wording that applies is the following. It is not a cavalier view taken by me, but my interpretation and understanding of these particular rules, I never changed my approach that day to these rules, I always behaved exactly the same way and still stand by my interpretation.
Rule Book TW5, Part A, 1.2, Reporting defective on train equipment.
1.2 b, Stopping train at the first CONVENIENT opportunity.
You must stop your train at the first CONVENIENT opportunity when you become aware of a defect on the following equipment, (warning horn – partial failure) and tell the train operators control.
The first CONVENIENT opportunity MAY include the next scheduled station or other stopping point on the journey, or when detained at a stop signal showing a stop aspect.
IF reporting the defect will cause delay, you must inform the signaler the reason for the delay.
Rule Book TW5, 37.3 b
Partial failure of the warning horn.
If the warning horn becomes partially defective, (for example, one tone not working) on a train which is in service, you must:
Tell the train operators control at the first CONVENIENT opportunity.
Carry out the instructions given.
Rule Book, Part A, 2.2 Driver reporting a defect.
When you are required to report defective on train equipment, depending on the on train equipment concerned, you must.
Tell the train operators control at the first convenient opportunity (see 1.2b).
If possible you must avoid stopping the train:
On a junction.
At any other place where it might be difficult to deal with the situation.
The key words are CONVENIENT (stop your train at the first CONVENIENT opportunity).
Another key word is MAY (The first CONVENIENT opportunity MAY include the next scheduled station or other stopping point on the journey, or when detained at a stop signal showing a stop aspect).
The final key word is IF (IF reporting the defect will cause delay, you must inform the signaler the reason for the delay).
CONVENIENT: Suitable or favorable to one`s comfort, purpose or needs.
MAY: Used to indicate a certain measure of likelihood or possibility.
IF: In the event that.
All of these 3 key words do not express a mandatory outcome, they are open to a person`s interpretation. If TPE management require drivers to comply to their interpretation of these rules then they should make it known and because in their eyes any other interpretation other than theirs warrants dismissal they should strive to get the wording of this ruling re-worded.
To this day, those rules are still open to interpretation. Drivers are still failing to report defects using the correct procedures and I can prove this with information I have.
Nearly 25 years as a driver with a clean record, no serious transgression of rules, no signals passed at danger, yet one minor blip, one instance of a rules violation that is still open to interpretation and I am dismissed, at the worst case scenario this was a training issue, if I had been allowed to defend myself by reading out my witness statement it would have become apparent that I was dismissed for an ulterior motive, many people out there know this and no doubt one day someone will have the guts to stand up to the TPE bullies.
Perry Webb.
I WILL NEVER GIVE UP.