_ WITNESS STATEMENT
IN THE EMPLOYMENT TRIBUNAL Case No 1809253/2009
AT LEEDS
BETWEEN
MR P P WEBB Claimant
and
FIRST/KEOLIS TRANSPENNINE EXPRESS Respondent
I Perry Paul Webb will say as follows.
1. I started the railway straight from school aged 16 in 1979, initially as a traction trainee then becoming a train driver`s assistant based in York. In 1984 aged 21 I took up a driver`s vacancy at Selhurst Depot in London and in July 1985 became a fully qualified driver at the age of 22. I stayed at Selhurst until 1991. Due to personal reasons I left the railway and came back to York .
2. In 1997 I enquired about getting back into the footplate grade and found that there was a shortage of drivers at York. I passed all the relevant tests and became a driver with Regional Railways North East at the end of 1997.
3. In February 2004, First Group, Transpennine Express took over the franchise.
Background
1. The following statement that I made in a train repair book (1) resulted in 3 charges of alleged gross misconduct. “noise and draught through driver`s side door drop down window, noise levels excessive. Windscreen wiper only working on fast speed, intermittently stopping all together. Warning horn took ages till it eventually worked, possibly frozen. All of this combined, led to a near miss with p way staff (track workers), distracted by noise, unable to obtain a clear view and unable to give adequate warning. Yet all I ever see is, tested on depot, ok, somebody needs to wake up to these problems and now”.
2. The 3 charges are as follows (2) . 1. On Wednesday 14th January you failed to follow the correct procedure for reporting a defective warning horn. 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.3. You failed to follow the correct procedure for reporting unit defects.
3. On Wednesday the 14th January 2009, my job that morning consisted of 2 trips to Newcastle from York (3). The incident in question occurred on my way back from Newcastle on the first trip. The weather conditions in my opinion were freezing upon leaving Newcastle until I reached Tollerton which is approximately 6 miles out of York, where the temperature in my opinion had risen. This was backed up by the weather charts I produced from the internet, (4a & 4b & 4c).When I used the warning horn initially near Chester-le- Street it worked. But approaching Darlington, the high tone produced no noise, the low tone worked.
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”.
4. There was also 2 other faults with this unit, a windscreen wiper that worked occasionally and erratically and severe noise coming from the driver`s door, both very common problems.
5. At Northallerton, my next stopping place, I tried again to contact control, once again the call failed, I had green signals with the only means of contacting control via the signal post telephone at the end of the platform. In my judgment I deemed it not practicable to use this phone because of the inevitable delay this would have caused and my train was across a busy junction (6) (2) 2.2 “if possible you must avoid stopping the train on a junction”. I also had the knowledge that informing control would have no effect whatsoever and place no restrictions on my train to continue its journey at maximum speed, this is because this situation was extremely familiar to me, it happened every time we had damp and cold weather conditions.
6. TPE contingency plans are proof of this very point, (7), they state, under in service actions for a partially defective warning horn that the, “train may complete its journey”. This contingency plan is what would have been referred too, had I spoke with TPE control.
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.
8. This day my thoughts regarding the warning horn really worried me. I have in the past known both tones to fail on numerous occasions, my thoughts for some reason went back to a man called Lindsey Warrington, (8),(9 & 9a,b,c), (10) Mr. Warrington was a track worker who was sadly killed at Old Trafford near Manchester in October 2005. I can remember in vivid detail watching the events unfold before me and then feeling guilty (9c) at not doing more to try and prevent his death. I then gave evidence in Stockport Coroner`s Court and spoke with his family afterwards, it was an extremely hard and emotional day and nobody from TPE had the decency to accompany me. Their ignorance goes further than just ignoring reports.
9. With Lindsey Warrington thoughts on my mind and also how many times I had previously reported this danger on drivers report forms and injury prevention forms even pointing out on one occasion (11), “that maybe it requires a death before a solution is found”,.Going as far back as December 2007 I explained then (12) that, “warning horns are freezing up and stop working, signaller and maintenance can be informed, but what do you want us to do when this happens”? These reports sadly never received a response.
10. Because I had tried every possible way that I could think of to try and get someone to listen to me, numerous reports, repair slips, verbally, even a petition from the drivers, (13 to 13g), sadly all to no avail, all it would have required was a manager, anyone, to sit down with me and explain what TPE were doing with this problem. If that had happened then there is absolutely no way I would be in this position now. A simple discussion, consultation, would have been sufficient.
IN THE EMPLOYMENT TRIBUNAL Case No 1809253/2009
AT LEEDS
BETWEEN
MR P P WEBB Claimant
and
FIRST/KEOLIS TRANSPENNINE EXPRESS Respondent
I Perry Paul Webb will say as follows.
1. I started the railway straight from school aged 16 in 1979, initially as a traction trainee then becoming a train driver`s assistant based in York. In 1984 aged 21 I took up a driver`s vacancy at Selhurst Depot in London and in July 1985 became a fully qualified driver at the age of 22. I stayed at Selhurst until 1991. Due to personal reasons I left the railway and came back to York .
2. In 1997 I enquired about getting back into the footplate grade and found that there was a shortage of drivers at York. I passed all the relevant tests and became a driver with Regional Railways North East at the end of 1997.
3. In February 2004, First Group, Transpennine Express took over the franchise.
Background
1. The following statement that I made in a train repair book (1) resulted in 3 charges of alleged gross misconduct. “noise and draught through driver`s side door drop down window, noise levels excessive. Windscreen wiper only working on fast speed, intermittently stopping all together. Warning horn took ages till it eventually worked, possibly frozen. All of this combined, led to a near miss with p way staff (track workers), distracted by noise, unable to obtain a clear view and unable to give adequate warning. Yet all I ever see is, tested on depot, ok, somebody needs to wake up to these problems and now”.
2. The 3 charges are as follows (2) . 1. On Wednesday 14th January you failed to follow the correct procedure for reporting a defective warning horn. 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.3. You failed to follow the correct procedure for reporting unit defects.
3. On Wednesday the 14th January 2009, my job that morning consisted of 2 trips to Newcastle from York (3). The incident in question occurred on my way back from Newcastle on the first trip. The weather conditions in my opinion were freezing upon leaving Newcastle until I reached Tollerton which is approximately 6 miles out of York, where the temperature in my opinion had risen. This was backed up by the weather charts I produced from the internet, (4a & 4b & 4c).When I used the warning horn initially near Chester-le- Street it worked. But approaching Darlington, the high tone produced no noise, the low tone worked.
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”.
4. There was also 2 other faults with this unit, a windscreen wiper that worked occasionally and erratically and severe noise coming from the driver`s door, both very common problems.
5. At Northallerton, my next stopping place, I tried again to contact control, once again the call failed, I had green signals with the only means of contacting control via the signal post telephone at the end of the platform. In my judgment I deemed it not practicable to use this phone because of the inevitable delay this would have caused and my train was across a busy junction (6) (2) 2.2 “if possible you must avoid stopping the train on a junction”. I also had the knowledge that informing control would have no effect whatsoever and place no restrictions on my train to continue its journey at maximum speed, this is because this situation was extremely familiar to me, it happened every time we had damp and cold weather conditions.
6. TPE contingency plans are proof of this very point, (7), they state, under in service actions for a partially defective warning horn that the, “train may complete its journey”. This contingency plan is what would have been referred too, had I spoke with TPE control.
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.
8. This day my thoughts regarding the warning horn really worried me. I have in the past known both tones to fail on numerous occasions, my thoughts for some reason went back to a man called Lindsey Warrington, (8),(9 & 9a,b,c), (10) Mr. Warrington was a track worker who was sadly killed at Old Trafford near Manchester in October 2005. I can remember in vivid detail watching the events unfold before me and then feeling guilty (9c) at not doing more to try and prevent his death. I then gave evidence in Stockport Coroner`s Court and spoke with his family afterwards, it was an extremely hard and emotional day and nobody from TPE had the decency to accompany me. Their ignorance goes further than just ignoring reports.
9. With Lindsey Warrington thoughts on my mind and also how many times I had previously reported this danger on drivers report forms and injury prevention forms even pointing out on one occasion (11), “that maybe it requires a death before a solution is found”,.Going as far back as December 2007 I explained then (12) that, “warning horns are freezing up and stop working, signaller and maintenance can be informed, but what do you want us to do when this happens”? These reports sadly never received a response.
10. Because I had tried every possible way that I could think of to try and get someone to listen to me, numerous reports, repair slips, verbally, even a petition from the drivers, (13 to 13g), sadly all to no avail, all it would have required was a manager, anyone, to sit down with me and explain what TPE were doing with this problem. If that had happened then there is absolutely no way I would be in this position now. A simple discussion, consultation, would have been sufficient.
11. That morning I carried out my own risk assessment of the situation I was in, Faulty equipment combined with distraction and ignorance = DEATH. I challenge anyone from TPE to say that the outcome of death with this assessment is not a possibility.
12. En route I was informed by my conductor that there was going to be a set swap in York and our service was going back to Middlesbrough. When we arrived in York the service screens showed my train as going forward to Manchester Airport and people were joining the service with cases thinking just this. I went down the train to these people explaining that this was the Middlesbrough service. Then in all the confusion I ripped the repair sheet out of the book and placed it in my bag. Unfortunately I had not filled it out in full, a complete oversight and certainly not intentional.
This at the time was backed up by the ASLEF Branch Secretary who said, (14),“the irony of bro Webb being charged with not following correct procedures for reporting unit defects is that he is one of the most prolific reporters of such defects, and it was only the shortage of time and mix up due to a change of set (for unrelated reasons) that prevented him from doing so this time. It beggars belief if TPE charge every driver with “Gross Misconduct”, every time they failed to report every defect or to do so in the correct manner. Most of us do, but there is an element who rely on the bro Webb`s of this world (and other diligent driver`s and union activists) to do the necessary work”.
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.
First investigatory interview, 15th January 2009.
14. On the 15th January 2009 I booked on duty and was asked to see Manager Stephen Percival in the office, he said that he wanted to have a word about yesterday. When I saw he had a minute taker I knew it was more than a word. Knowing recent events with TPE over an incident (15 to 31) whereby TPE had tried to implicate that I had deliberately left a train unattended and encroaching onto the main line, further attempting to set me up 2 days later with the same type of scenario, (32) I was naturally concerned. (This will be brought up in more detail later).
15. It also concerned me due to another recent event on the 6th January 2009 whereby Manager Peter Turpin said to me after a grievance meeting, “can I have a quiet word”, he then asked me to tone down my reports, I explained they require answers and that they are hard hitting and to the point. Unbelievably this so called quiet word turns up in the investigation notes as if it was a written warning. (33) Appendix J. Why would a quiet word have been put in writing and titled P.Webb interview and dated for the 21st January 2009?
16. Continuing with what became the first investigatory interview on the 15th January 2009 (34). I answered all questions and made it quite clear (34, para 4) that there had not been a near miss incident.
Second investigatory interview 20th January 2009.
17. After 4 days off work, (rest days), I returned for duty at 21.00 hours on Tuesday 20th January 2009. I was met by Managers Stephen Percival and Andrew Steele. I was told they wanted to interview me further (35), I immediately asked for a rep to accompany me to which they said it wasn’t convenient because it was 21.00 hours. When we went into the interview room I asked if I was still doing the shunt job after the interview to which Stephen Percival replied that the job had already been covered. This to me was clear evidence that the outcome of that interview had already been decided.
18. Stephen Percival also stated (35) “that his role as investigating officer was not to be judgmental or apportion blame”, but during the interview he said,(35b) (1) “that after consideration of the evidence that he had available and in view of the serious nature of the allegations that he felt it necessary to place me on investigatory suspension with immediate effect”, further stating, (2) “that it was his decision and that he felt it justified owing to the seriousness of the allegations and the impact it had on business”. I was never once informed what impact it supposedly had to the business.
19. Quite obviously, the decision to suspend me was made before the interview. If his role as investigating officer was not to be judgmental then why would he place me on suspension? By taking the actions he did, I was denied representation which should have been allowed the moment it became apparent that action against me was being contemplated, which in this case was the moment Manager Percival covered my turn of duty with another driver, before interviewing me.
20. What should have happened in this instance is summarised in the Drivers Rostering and Manning Agreement called the blue book. I would like to point out that until this case, I had never seen this book (36). “Whilst the right to accompaniment is not triggered at this stage, a fellow employee, staff representative or TU official may attend to support the driver provided that this is possible without unnecessarily prolonging or causing undue delay to the process”. Furthermore (37) under, Guidelines for managers on operating this procedure it states, “the main aim of this procedure is to affect changes in behaviour. Managers should work in close co-operation with drivers to encourage and support a positive safety culture. By working together, joint benefits can (be) achieved. By considering alternatives to disciplinary action where appropriate and offering adequate support and training, a culture will be created which will lead to a reduction in safety of the line incidents”. Which TPE manager ever worked with me and offered encouragement or support towards any issues on health and safety? What type of culture is actually in place if no alternatives are used and even the smallest word of encouragement is never used?
21. Furthermore, (38) it states, “ Whilst the formal right to be accompanied is not triggered at the investigation stage, this can be a particularly stressful experience and managers should ensure that drivers are offered the support of a representative where one is available without causing undue disruption or delay to the process”, continuing with, “the investigation should cover all the circumstances in which the incident took place, managers should consider whether an error or mistake has occurred or whether it is more appropriate to consider the case under capability, not conduct. A single serious incident or a series of less serious incidents may have occurred which would indicate that a pattern is emerging and will alert the manager to the appropriateness of dealing with the case under capability rather than discipline”. Then under scenario`s it says, “managers should recognize those circumstances where drivers have used their best judgment and made decisions based on the safety and best interest of passengers. Managers should consider the range of options with which the driver was faced in the circumstances of the incident, before deciding on the fairest way to proceed with the case”. It is evident from this procedure that in my case, this was not put into practice. The only option used against me was dismissal, none of the circumstances which I am using in this statement and were available to TPE throughout the investigation and hearings were considered.
12. En route I was informed by my conductor that there was going to be a set swap in York and our service was going back to Middlesbrough. When we arrived in York the service screens showed my train as going forward to Manchester Airport and people were joining the service with cases thinking just this. I went down the train to these people explaining that this was the Middlesbrough service. Then in all the confusion I ripped the repair sheet out of the book and placed it in my bag. Unfortunately I had not filled it out in full, a complete oversight and certainly not intentional.
This at the time was backed up by the ASLEF Branch Secretary who said, (14),“the irony of bro Webb being charged with not following correct procedures for reporting unit defects is that he is one of the most prolific reporters of such defects, and it was only the shortage of time and mix up due to a change of set (for unrelated reasons) that prevented him from doing so this time. It beggars belief if TPE charge every driver with “Gross Misconduct”, every time they failed to report every defect or to do so in the correct manner. Most of us do, but there is an element who rely on the bro Webb`s of this world (and other diligent driver`s and union activists) to do the necessary work”.
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.
First investigatory interview, 15th January 2009.
14. On the 15th January 2009 I booked on duty and was asked to see Manager Stephen Percival in the office, he said that he wanted to have a word about yesterday. When I saw he had a minute taker I knew it was more than a word. Knowing recent events with TPE over an incident (15 to 31) whereby TPE had tried to implicate that I had deliberately left a train unattended and encroaching onto the main line, further attempting to set me up 2 days later with the same type of scenario, (32) I was naturally concerned. (This will be brought up in more detail later).
15. It also concerned me due to another recent event on the 6th January 2009 whereby Manager Peter Turpin said to me after a grievance meeting, “can I have a quiet word”, he then asked me to tone down my reports, I explained they require answers and that they are hard hitting and to the point. Unbelievably this so called quiet word turns up in the investigation notes as if it was a written warning. (33) Appendix J. Why would a quiet word have been put in writing and titled P.Webb interview and dated for the 21st January 2009?
16. Continuing with what became the first investigatory interview on the 15th January 2009 (34). I answered all questions and made it quite clear (34, para 4) that there had not been a near miss incident.
Second investigatory interview 20th January 2009.
17. After 4 days off work, (rest days), I returned for duty at 21.00 hours on Tuesday 20th January 2009. I was met by Managers Stephen Percival and Andrew Steele. I was told they wanted to interview me further (35), I immediately asked for a rep to accompany me to which they said it wasn’t convenient because it was 21.00 hours. When we went into the interview room I asked if I was still doing the shunt job after the interview to which Stephen Percival replied that the job had already been covered. This to me was clear evidence that the outcome of that interview had already been decided.
18. Stephen Percival also stated (35) “that his role as investigating officer was not to be judgmental or apportion blame”, but during the interview he said,(35b) (1) “that after consideration of the evidence that he had available and in view of the serious nature of the allegations that he felt it necessary to place me on investigatory suspension with immediate effect”, further stating, (2) “that it was his decision and that he felt it justified owing to the seriousness of the allegations and the impact it had on business”. I was never once informed what impact it supposedly had to the business.
19. Quite obviously, the decision to suspend me was made before the interview. If his role as investigating officer was not to be judgmental then why would he place me on suspension? By taking the actions he did, I was denied representation which should have been allowed the moment it became apparent that action against me was being contemplated, which in this case was the moment Manager Percival covered my turn of duty with another driver, before interviewing me.
20. What should have happened in this instance is summarised in the Drivers Rostering and Manning Agreement called the blue book. I would like to point out that until this case, I had never seen this book (36). “Whilst the right to accompaniment is not triggered at this stage, a fellow employee, staff representative or TU official may attend to support the driver provided that this is possible without unnecessarily prolonging or causing undue delay to the process”. Furthermore (37) under, Guidelines for managers on operating this procedure it states, “the main aim of this procedure is to affect changes in behaviour. Managers should work in close co-operation with drivers to encourage and support a positive safety culture. By working together, joint benefits can (be) achieved. By considering alternatives to disciplinary action where appropriate and offering adequate support and training, a culture will be created which will lead to a reduction in safety of the line incidents”. Which TPE manager ever worked with me and offered encouragement or support towards any issues on health and safety? What type of culture is actually in place if no alternatives are used and even the smallest word of encouragement is never used?
21. Furthermore, (38) it states, “ Whilst the formal right to be accompanied is not triggered at the investigation stage, this can be a particularly stressful experience and managers should ensure that drivers are offered the support of a representative where one is available without causing undue disruption or delay to the process”, continuing with, “the investigation should cover all the circumstances in which the incident took place, managers should consider whether an error or mistake has occurred or whether it is more appropriate to consider the case under capability, not conduct. A single serious incident or a series of less serious incidents may have occurred which would indicate that a pattern is emerging and will alert the manager to the appropriateness of dealing with the case under capability rather than discipline”. Then under scenario`s it says, “managers should recognize those circumstances where drivers have used their best judgment and made decisions based on the safety and best interest of passengers. Managers should consider the range of options with which the driver was faced in the circumstances of the incident, before deciding on the fairest way to proceed with the case”. It is evident from this procedure that in my case, this was not put into practice. The only option used against me was dismissal, none of the circumstances which I am using in this statement and were available to TPE throughout the investigation and hearings were considered.
Investigation Report.
22. According to ACAS Guidelines an investigatory officer is to look at any investigation from both sides, there is nowhere in this investigation that shows evidence to help my case. What should have been used, is their knowledge of all my previous reporting and how their ignorance has affected me in the past. After all they sent me to the BUPA doctor because of a similar incident in 2004 where they became unhappy at the tone of my reports, (which will be seen later).
23. There is also the fact that as a company they actually admit they have been aware of the warning horn defect since introduction, this is from a fleet update (39) for period 10, 07/12/08 to 03/01/09 which came out towards the end of January 2009.
Furthermore there is evidence to show that information not relevant to this case was used to make myself and my case look far worse (40) 5.8, “the driver has a long standing and recorded history of submitting reports containing sarcastic and derogatory comments”and (40a) 5.12, “the driver was involved in the following recent incidents “.What is the relevance of these issues to what occurred?
There is also evidence to show that TPE`s reason why the train was kept from re-entering service at its scheduled time was because? Well even they seem very mixed up with this and are not sure themselves. This is what they state, it was kept out of service, “to undergo the necessary safety checks” and “due to the severity of the allegations within the defect slip” and “As a result of the additional investigations carried out by depot staff”. Let`s look at these quotes.
(41), “to undergo the necessary safety checks”. These are checks that would/should have happened regardless of the near miss allegation. Therefore it was not kept out of service for the allegation of a near miss; it was kept out of service because safety checks were necessary in other words mandatory.
(41a ) But in TPE grounds of resistance, they state the unit was taken out of service, “due to the severity of the allegations within the defect slip”. What was this so called severity? The mention of a near miss was used in relation to the 3 defects that were apparent and real that morning, remedy the defects and the likelihood of a near miss occurring that could be attributable to those type of defects is zero. The severity was for a reason, stop ignoring me, take the defects seriously and remedy them or face the possibility that they will eventually be attributable to a person or person`s losing their lives.
(41b) Yet as we will see later in this investigation, TPE say the following, “As a result of the additional investigations carried out by depot staff”. After you have completed the repairs and tested the equipment, there is no further investigation to carry out.
TPE have 3 different reasons why this train was supposedly kept out of service. In all my years of experience as a train driver, a near miss has never been attributable to a train being kept out of service. I have known trains remain in service after hitting people who survive and fatalities, I should know, I have had 3 fatalities and hit others who have survived. Continuing with their discrepancies.
24. (42) 4.6 “The driver believed that temperatures might have been sufficiently low enough to cause freezing problems with the warning horn. Although this is disputed by the FTPE Technical Engineering Manager”, Appendix F (42a) (1) the Engineering Manager stated, “Note I do not believe the temperature on the 14th was at a level which would cause a problem with the horn in service”. In other words, I am a liar.
Thankfully I obtained the weather records via the internet which substantiated my judgment on that morning, (43) the temperature was below freezing. What information and from where, did the Technical Engineering Manager use to make his judgment, I can only assume that it was possibly, because he is based in Manchester and the temperature there was above freezing. Why did the investigating officer, Manager Percival accept an assumption on the temperature instead of investigating for himself?
The investigation conclusion was (42a) (2), “horn tested and found to be fully operational”, which is supposedly a response not to be used anymore as (44) states, `NFF` (no fault found) or working on arrival at depot shall no longer be acceptable answers. Yet in my evidence bundle are numerous repair slips with those very responses still being written to this day and to think they shall no longer be an acceptable answer! This is exactly what I was always up against, TPE glossy image portrays safety as paramount, but in reality they fail miserably.
25. (45) 4.21States that a decision was made by Siemens to withdraw the unit from traffic, pending investigation and corrective maintenance as found to be necessary. See Appendix B (46) (1). The unit went on to the depot at 22.36hrs, by 00.30hrs, they had ascertained that no near miss had been reported to any signaler and that TPE had received no associated paperwork.
Therefore all that is left for them is to check out are the alleged defects and repair if necessary, once the defects are rectified there is no reason or further investigation required. Never has it been known that a train is taken out of service if a near miss is reported. Why did they make the decision to remove the train from service before 00.30hrs as, (46) (2) shows, how could they be sure their so called investigation would not be completed in time?
Also at the bottom of this page (46) (3), the date of the control log is the 14th January, yet at 00.30hrs it was the 15th January. It also next to incident number (46) (4) which states, “No delay”, this was supposedly filled in at 00.30hrs on being advised by Siemens at Ardwick Depot. But as (46) (1) points out, “yet no near miss has been reported to any signaler and no paperwork or advice has been received to TPE control”. It would take time to find out if this so called near miss had been reported, yet after only just being advised they already have the answer!
26. An interesting point from the maintenance notes (46) (5), is that the train was being stopped at Ardwick for further investigation before going to York for a “B” exam, possibly suggesting that this unit was overdue its “B” exam and would not have been used in passenger service. This is further enforced by what Manager Ged Higgins said to Driver Geoff Lee (46a), “We took the train out of service for 2 days for no reason and it cost us £40,000”. (The rest of this interview is used later).
27. The next is a very key point, (47) 4.23 “As a result of the additional investigations carried out by depot staff the unit was unable to return to passenger traffic as scheduled on the morning of Thursday 15th January 2009”. Where does this information come from? If Manager Percival is referring to Appendix H (48). What I find unusual about this document is that it is not dated and was, from its contents requested the week after on Manager Percival`s request the previous day. It’s possibly an email, so why hide the identity of the sender and the date it was sent? Its content however makes it quite clear, this train was kept out of traffic, “to undergo the necessary safety checks”.
Therefore the false allegation did not keep this train out of service, any necessary safety checks would be compulsory and as the defects I wrote about were not a fabrication and clearly existed, this was the reason the train was delayed re-entering service.
This is also in direct contradiction to what was said in the TPE control log (46) (2), “the unit will be stopped for full investigation and testing. This will lead to the depot being short for start of service in the morning”. Siemens had already decided to withdraw this train from service, but Manager Percival is making out that it was down to “additional investigations” being the reason that the unit was unable to return to passenger traffic.
22. According to ACAS Guidelines an investigatory officer is to look at any investigation from both sides, there is nowhere in this investigation that shows evidence to help my case. What should have been used, is their knowledge of all my previous reporting and how their ignorance has affected me in the past. After all they sent me to the BUPA doctor because of a similar incident in 2004 where they became unhappy at the tone of my reports, (which will be seen later).
23. There is also the fact that as a company they actually admit they have been aware of the warning horn defect since introduction, this is from a fleet update (39) for period 10, 07/12/08 to 03/01/09 which came out towards the end of January 2009.
Furthermore there is evidence to show that information not relevant to this case was used to make myself and my case look far worse (40) 5.8, “the driver has a long standing and recorded history of submitting reports containing sarcastic and derogatory comments”and (40a) 5.12, “the driver was involved in the following recent incidents “.What is the relevance of these issues to what occurred?
There is also evidence to show that TPE`s reason why the train was kept from re-entering service at its scheduled time was because? Well even they seem very mixed up with this and are not sure themselves. This is what they state, it was kept out of service, “to undergo the necessary safety checks” and “due to the severity of the allegations within the defect slip” and “As a result of the additional investigations carried out by depot staff”. Let`s look at these quotes.
(41), “to undergo the necessary safety checks”. These are checks that would/should have happened regardless of the near miss allegation. Therefore it was not kept out of service for the allegation of a near miss; it was kept out of service because safety checks were necessary in other words mandatory.
(41a ) But in TPE grounds of resistance, they state the unit was taken out of service, “due to the severity of the allegations within the defect slip”. What was this so called severity? The mention of a near miss was used in relation to the 3 defects that were apparent and real that morning, remedy the defects and the likelihood of a near miss occurring that could be attributable to those type of defects is zero. The severity was for a reason, stop ignoring me, take the defects seriously and remedy them or face the possibility that they will eventually be attributable to a person or person`s losing their lives.
(41b) Yet as we will see later in this investigation, TPE say the following, “As a result of the additional investigations carried out by depot staff”. After you have completed the repairs and tested the equipment, there is no further investigation to carry out.
TPE have 3 different reasons why this train was supposedly kept out of service. In all my years of experience as a train driver, a near miss has never been attributable to a train being kept out of service. I have known trains remain in service after hitting people who survive and fatalities, I should know, I have had 3 fatalities and hit others who have survived. Continuing with their discrepancies.
24. (42) 4.6 “The driver believed that temperatures might have been sufficiently low enough to cause freezing problems with the warning horn. Although this is disputed by the FTPE Technical Engineering Manager”, Appendix F (42a) (1) the Engineering Manager stated, “Note I do not believe the temperature on the 14th was at a level which would cause a problem with the horn in service”. In other words, I am a liar.
Thankfully I obtained the weather records via the internet which substantiated my judgment on that morning, (43) the temperature was below freezing. What information and from where, did the Technical Engineering Manager use to make his judgment, I can only assume that it was possibly, because he is based in Manchester and the temperature there was above freezing. Why did the investigating officer, Manager Percival accept an assumption on the temperature instead of investigating for himself?
The investigation conclusion was (42a) (2), “horn tested and found to be fully operational”, which is supposedly a response not to be used anymore as (44) states, `NFF` (no fault found) or working on arrival at depot shall no longer be acceptable answers. Yet in my evidence bundle are numerous repair slips with those very responses still being written to this day and to think they shall no longer be an acceptable answer! This is exactly what I was always up against, TPE glossy image portrays safety as paramount, but in reality they fail miserably.
25. (45) 4.21States that a decision was made by Siemens to withdraw the unit from traffic, pending investigation and corrective maintenance as found to be necessary. See Appendix B (46) (1). The unit went on to the depot at 22.36hrs, by 00.30hrs, they had ascertained that no near miss had been reported to any signaler and that TPE had received no associated paperwork.
Therefore all that is left for them is to check out are the alleged defects and repair if necessary, once the defects are rectified there is no reason or further investigation required. Never has it been known that a train is taken out of service if a near miss is reported. Why did they make the decision to remove the train from service before 00.30hrs as, (46) (2) shows, how could they be sure their so called investigation would not be completed in time?
Also at the bottom of this page (46) (3), the date of the control log is the 14th January, yet at 00.30hrs it was the 15th January. It also next to incident number (46) (4) which states, “No delay”, this was supposedly filled in at 00.30hrs on being advised by Siemens at Ardwick Depot. But as (46) (1) points out, “yet no near miss has been reported to any signaler and no paperwork or advice has been received to TPE control”. It would take time to find out if this so called near miss had been reported, yet after only just being advised they already have the answer!
26. An interesting point from the maintenance notes (46) (5), is that the train was being stopped at Ardwick for further investigation before going to York for a “B” exam, possibly suggesting that this unit was overdue its “B” exam and would not have been used in passenger service. This is further enforced by what Manager Ged Higgins said to Driver Geoff Lee (46a), “We took the train out of service for 2 days for no reason and it cost us £40,000”. (The rest of this interview is used later).
27. The next is a very key point, (47) 4.23 “As a result of the additional investigations carried out by depot staff the unit was unable to return to passenger traffic as scheduled on the morning of Thursday 15th January 2009”. Where does this information come from? If Manager Percival is referring to Appendix H (48). What I find unusual about this document is that it is not dated and was, from its contents requested the week after on Manager Percival`s request the previous day. It’s possibly an email, so why hide the identity of the sender and the date it was sent? Its content however makes it quite clear, this train was kept out of traffic, “to undergo the necessary safety checks”.
Therefore the false allegation did not keep this train out of service, any necessary safety checks would be compulsory and as the defects I wrote about were not a fabrication and clearly existed, this was the reason the train was delayed re-entering service.
This is also in direct contradiction to what was said in the TPE control log (46) (2), “the unit will be stopped for full investigation and testing. This will lead to the depot being short for start of service in the morning”. Siemens had already decided to withdraw this train from service, but Manager Percival is making out that it was down to “additional investigations” being the reason that the unit was unable to return to passenger traffic.
28. (49) 5.2 I disagree with the first sentence of this passage as I did request accompaniment at the second interview. I couldn’t dispute this at the time because I was never asked to sign any copies of the interview minutes. I did however dispute this in my letter to TPE dated 21st January 2009, (50).
29. (51) 5.8 This paragraph is totally irrelevant to this investigation and is clearly used to make me look as bad as possible. If after my 2004 incident (which will be highlighted later) I am quite sure that I would have been jumped on if I really did have a long standing and recorded history of submitting reports containing sarcastic and derogatory comments. To make me look even worse a letter, Appendix J (52) which was as stated was an informal discussion, in other words a quiet word is turned into what can only be described as a written warning. If this has relevance to my investigation and obviously played a part in the decision making to charge me with gross misconduct why were my previous reports that I mentioned in the investigation interviews not used? This was never a level playing field.
30. (53) 5.10Stephen Percival refers to an email I sent all managers concerned on the 21st January 2009. He states that my actions may have been a premeditated act, not that he deemed my actions as premeditated. I did explain to him that I had documented proof, that for years I had complained about these issues, he could have looked for these reports and used them as evidence to support my side, but he decided not to, this investigation was all one sided.
31. The email (54, 55, 56) Appendix K, outlines how I felt at that time, I will read this out if necessary, but not print its wording here, it is as follows……….....................
32. (57) This is further evidence used against me which had absolutely nothing to do with my incident, why would Stephen Percival bring up 2 incidents totally unconnected with this investigation? The one however on Tuesday 25th November 2008 was an attempt to find a way of dismissing me before this incident. (15 to 31) I was accused of leaving a train foul (hanging over) of the main line after leaving it at Siemens Depot in York. I totally denied the accusations and had to defend myself in robust fashion to prevent my dismissal. I did absolutely nothing wrong yet never received an apology or information I had requested which I knew categorically proved I was telling the truth. TPE even went to extreme lengths in trying to set me up. (32).
33. Conclusions, cause levels, (58) 6.1the immediate cause. “The driver failed to follow the correct procedure when submitting a unit defect slip”, I was never charged with this, however, there is not a procedure to be found that explains what is expected of a driver when submitting a unit defect slip. There are many drivers who never bother to fax slips to control, they just place them in the box at the signing on point, there has also been many occasions where the fax machine was not working, so how would TPE control receive the slips then? How can this be classed as gross misconduct?
34. (59) Underlying cause, Stephen Percival states that I perceived the problems with faults and maintenance to be the fault of Siemens and TPE management. Again, I explained to him that I had proof, why didn`t he read through my personal file where this evidence was available?
35. Risks (60), unbelievably the main risk, the main consequence of my report in that repair book, was that 2 services were short formed with the resultant inconvenience to passengers.
36. (60) A further risk, 8.2 States “Had the unit been out of traffic for a longer period there may have been cancellations to services”, this is a totally irrelevant statement, I could say if the unit re-entered service without the faults being rectified there may have been a fatality. I do say however, that if TPE management involved me and had the decency to talk issues through, we wouldn`t be in this tribunal today.
37. (60) The final risk, 8.3 States,“By failing to fully comply with the correct reporting procedure the driver allowed the unit to remain in traffic for the remainder of the day. At the time I had my partial failure, I attempted to inform control, by the time I arrived in York the warning horn was fully working.
I spoke with the relieving driver and informed him of the problems, those problems however would be of no consequence as the train was being driven from the other cab. Because the horn was fully working there was no need to report it to control, even if I had of reported this to control that train would still have remained in service for the rest of that day as per TPE contingency plan (61) in service actions, “train may complete its journey”.
Does charge 1, failing to follow the correct procedure for reporting a defective warning horn really warrant a charge of gross misconduct in these circumstances? Furthermore, when that driver changed ends at Middlesbrough and drove from the cab that I drove that train to York in, he never reported any issues with that cab, he would have encountered whistle boards between Middlesbrough and York, so I am quite sure if the horn failed to work he would have reported it, or would he? No other driver on that day, encountered any problems, so why wasn`t this taken into account? Especially as my actions supposedly put the whole of the railway at risk, as we shall see later.
38. (60) 8.3 The final risk continues, “With faults that the driver believed to be extremely serious in nature”. I have always had the belief that these faults are extremely dangerous and one day will lead to the serious injury or death of a person or persons. Yet as proven throughout my bundle, what does it matter what I think? The ignorance that I have had to endure shows that my thoughts and beliefs mean absolutely nothing. Please note, the investigating officer however only uses my belief that these faults were extremely serious in nature.
39. Only 2 issues of non compliance were ascertained from this investigation (62) (1) 9.1, the first that I made the false allegations, which should say false allegation, possibly as a premeditated act. I never gave any indication that what I did was premeditated, it was a spur of the moment thought that I acted upon with a good reason especially taking into account all my railway experience. Does this warrant gross misconduct?
40. The second issue (62) (2) of non compliance was by not following the correct reporting procedure I allowed a train to remain in service with faults I believed to be serious and potentially capable of contributing to a safety of the line event. Again not what TPE believe to be serious, but what I believe to be serious, what would have happened if every time we had freezing or damp weather I evoked TPE refusal to work policy on health and safety grounds and refused to drive a train because I thought it potentially capable of contributing to a safety of the line event? What action would be taken then, against me? Especially as TPE have never once said throughout this series of events that they believed these faults to be serious. Once again does this warrant gross misconduct?
41. Out of an incident deemed so serious to suspend me and charge me with gross misconduct the Investigating Officer, Manager Percival comes up with only one recommendation.(63) 10, “FTPE Operations Department to incorporate the correct reporting procedure into the safety briefs”. This shows that they were aware that drivers do not report matters how they should.You would however have thought that out of such an incident that warranted charges of gross misconduct as TPE see it, this recommendation would have been implemented, but as the emails (64 to 64k) I received from drivers show (drivers responses highlighted in red), not one of them who responded has had a safety brief where this has been mentioned or in some cases a safety brief. This just shows how seriously TPE have taken this incident.
29. (51) 5.8 This paragraph is totally irrelevant to this investigation and is clearly used to make me look as bad as possible. If after my 2004 incident (which will be highlighted later) I am quite sure that I would have been jumped on if I really did have a long standing and recorded history of submitting reports containing sarcastic and derogatory comments. To make me look even worse a letter, Appendix J (52) which was as stated was an informal discussion, in other words a quiet word is turned into what can only be described as a written warning. If this has relevance to my investigation and obviously played a part in the decision making to charge me with gross misconduct why were my previous reports that I mentioned in the investigation interviews not used? This was never a level playing field.
30. (53) 5.10Stephen Percival refers to an email I sent all managers concerned on the 21st January 2009. He states that my actions may have been a premeditated act, not that he deemed my actions as premeditated. I did explain to him that I had documented proof, that for years I had complained about these issues, he could have looked for these reports and used them as evidence to support my side, but he decided not to, this investigation was all one sided.
31. The email (54, 55, 56) Appendix K, outlines how I felt at that time, I will read this out if necessary, but not print its wording here, it is as follows……….....................
32. (57) This is further evidence used against me which had absolutely nothing to do with my incident, why would Stephen Percival bring up 2 incidents totally unconnected with this investigation? The one however on Tuesday 25th November 2008 was an attempt to find a way of dismissing me before this incident. (15 to 31) I was accused of leaving a train foul (hanging over) of the main line after leaving it at Siemens Depot in York. I totally denied the accusations and had to defend myself in robust fashion to prevent my dismissal. I did absolutely nothing wrong yet never received an apology or information I had requested which I knew categorically proved I was telling the truth. TPE even went to extreme lengths in trying to set me up. (32).
33. Conclusions, cause levels, (58) 6.1the immediate cause. “The driver failed to follow the correct procedure when submitting a unit defect slip”, I was never charged with this, however, there is not a procedure to be found that explains what is expected of a driver when submitting a unit defect slip. There are many drivers who never bother to fax slips to control, they just place them in the box at the signing on point, there has also been many occasions where the fax machine was not working, so how would TPE control receive the slips then? How can this be classed as gross misconduct?
34. (59) Underlying cause, Stephen Percival states that I perceived the problems with faults and maintenance to be the fault of Siemens and TPE management. Again, I explained to him that I had proof, why didn`t he read through my personal file where this evidence was available?
35. Risks (60), unbelievably the main risk, the main consequence of my report in that repair book, was that 2 services were short formed with the resultant inconvenience to passengers.
36. (60) A further risk, 8.2 States “Had the unit been out of traffic for a longer period there may have been cancellations to services”, this is a totally irrelevant statement, I could say if the unit re-entered service without the faults being rectified there may have been a fatality. I do say however, that if TPE management involved me and had the decency to talk issues through, we wouldn`t be in this tribunal today.
37. (60) The final risk, 8.3 States,“By failing to fully comply with the correct reporting procedure the driver allowed the unit to remain in traffic for the remainder of the day. At the time I had my partial failure, I attempted to inform control, by the time I arrived in York the warning horn was fully working.
I spoke with the relieving driver and informed him of the problems, those problems however would be of no consequence as the train was being driven from the other cab. Because the horn was fully working there was no need to report it to control, even if I had of reported this to control that train would still have remained in service for the rest of that day as per TPE contingency plan (61) in service actions, “train may complete its journey”.
Does charge 1, failing to follow the correct procedure for reporting a defective warning horn really warrant a charge of gross misconduct in these circumstances? Furthermore, when that driver changed ends at Middlesbrough and drove from the cab that I drove that train to York in, he never reported any issues with that cab, he would have encountered whistle boards between Middlesbrough and York, so I am quite sure if the horn failed to work he would have reported it, or would he? No other driver on that day, encountered any problems, so why wasn`t this taken into account? Especially as my actions supposedly put the whole of the railway at risk, as we shall see later.
38. (60) 8.3 The final risk continues, “With faults that the driver believed to be extremely serious in nature”. I have always had the belief that these faults are extremely dangerous and one day will lead to the serious injury or death of a person or persons. Yet as proven throughout my bundle, what does it matter what I think? The ignorance that I have had to endure shows that my thoughts and beliefs mean absolutely nothing. Please note, the investigating officer however only uses my belief that these faults were extremely serious in nature.
39. Only 2 issues of non compliance were ascertained from this investigation (62) (1) 9.1, the first that I made the false allegations, which should say false allegation, possibly as a premeditated act. I never gave any indication that what I did was premeditated, it was a spur of the moment thought that I acted upon with a good reason especially taking into account all my railway experience. Does this warrant gross misconduct?
40. The second issue (62) (2) of non compliance was by not following the correct reporting procedure I allowed a train to remain in service with faults I believed to be serious and potentially capable of contributing to a safety of the line event. Again not what TPE believe to be serious, but what I believe to be serious, what would have happened if every time we had freezing or damp weather I evoked TPE refusal to work policy on health and safety grounds and refused to drive a train because I thought it potentially capable of contributing to a safety of the line event? What action would be taken then, against me? Especially as TPE have never once said throughout this series of events that they believed these faults to be serious. Once again does this warrant gross misconduct?
41. Out of an incident deemed so serious to suspend me and charge me with gross misconduct the Investigating Officer, Manager Percival comes up with only one recommendation.(63) 10, “FTPE Operations Department to incorporate the correct reporting procedure into the safety briefs”. This shows that they were aware that drivers do not report matters how they should.You would however have thought that out of such an incident that warranted charges of gross misconduct as TPE see it, this recommendation would have been implemented, but as the emails (64 to 64k) I received from drivers show (drivers responses highlighted in red), not one of them who responded has had a safety brief where this has been mentioned or in some cases a safety brief. This just shows how seriously TPE have taken this incident.
42. I was placed on suspension with immediate effect after my second investigatory interview on the 20th January 2009. From this date onwards the situation played on my mind resulting in not being able to sleep, so on the 27th January I went to my GP and was prescribed some sleeping tablets (65), during this time I was receiving phone calls from drivers saying I was going to be sacked, general rumours. After more than 2 weeks without any news from TPE and feeling really down I finally snapped, on the 5th February 2009 I went back to my GP and was diagnosed with depression and given medication (66), I sent a letter to TPE on the 5th February outlining my feelings (67) (this needs reading out).
43. On the 10th February 2009 I received a letter from Route Driver Manager Barry Cook (68) with the 3 charges of alleged gross misconduct. It says that my actions if established would amount to gross misconduct. It further states that if they are upheld I am at risk from summary dismissal. “They” being the key word.
44. Charge 1, On Wednesday 14th January you failed to follow the correct procedure for reporting a defective warning horn. There was no appropriate rule book prefix with this charge, I knew what occurred that day but quite clearly Mr. Cook was so unsure that he only called the warning horn, (defective), there was no mention of a complete or partial failure of this warning horn as defined in the rule book. How can I be charged with gross misconduct on the information he used from the investigation which failed to ascertain what was wrong with that warning horn?
This charge was not specific. The following (69) is a copy of how the charges should have been made specific, it`s how another driver was charged and shows how the rule book is quoted in conjunction with the charges. How could Mr. Cook form a belief that I am guilty of gross misconduct on a non specific charge? Mr. Cook, quite clearly did not understand from the investigation report what actually happened that morning, therefore his belief can only be based upon assumption not fact.
45. The reason why this charge was not specific is because nowhere in the investigation did the investigating Manager Stephen Percival ascertain what, when, where, or how, my warning horn behaved and was used on that morning. Yet this warning horn was the most paramount issue and concern that sparked my repair book entry. For interest, I was also never asked once about the wipers or noise issues that were also part of my repair book entry.
46. Charge 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. I split this into 3 separate issues.
47. Issue 1, you also failed to follow the correct procedure for reporting a near miss incident. I explained from the very first interview on the 15th January 2009 that I had not been involved in a near miss, (70) para 4, it says, “but also confirmed he had NOT had a near miss”. However there is no procedure to be found for reporting a near miss. So why was I charged with this? I requested from Employee Relations Manager Charlotte Pears a copy of the near miss reporting procedure, Miss Pears response via email, (71) para 2,said, “In respect of the near miss reporting procedure this would be as per the rule book”. I requested a copy of the rule book near miss reporting procedure because I could not find the procedure.
I was then informed by Miss Pears, (72) first paragraph,“I understand the rule book does not specifically cover near miss incidents, however this is covered in Train Driver Competence Standards & Guidance, (SC1)”. There is also no mention of a so called near miss reporting procedure in this document. Is this evidence of Manager Barry Cook having a reasonable belief, supposedly in my guilt, that when the procedure he refers to and TPE are then asked for a copy, they cannot pinpoint where it can be found.
48. Looking at issue 1, I have just shown that there was no near miss therefore even if there was a procedure to follow, the procedure would not be relevant. Also there is no such procedure written down as a set of instructions to follow, therefore how can I be charged with gross misconduct on this so called failure to follow a procedure?
49. Issue 2, resulting in a train being taken out of service. This is not a charge and the train was not taken out of service, it finished its booked diagram work at the end of the day.
50. Issue 3, you subsequently admitted that this was a false allegation. I believe that this is the main ingredient in TPE`s case against me, the false allegation. Is this statement though, actually charging me with making a false allegation? Or am I being charged with the admittance of making a false allegation? This would be totally different. If the false allegation was the main issue and as the wording of the investigation says, “false allegation of a near miss incident on a unit defect slip”, why wasn`t this charge worded as a charge in its own right and not as a footnote.
51. On charge 3. You failed to follow the correct procedure for reporting unit defects. Like charge one, very non specific and without showing which part of the rule book I allegedly failed to follow. I can only assume it refers to the windscreen wiper and the noise coming from the driver`s door. How can this be classed as gross misconduct without a procedure to follow? Even if there was a procedure it would not amount to gross misconduct.
52. On the 12th February 2009 I sent an email to the managing director of TPE, Mr. Vernon Barker. (73) I explained exactly how I was feeling and that (74) para 2,over the last few months I thought I was becoming the subject of a managerial witch hunt. (The whole letter to be read out).
53. I received a response on the 18th February 2009 (75) Mr. Barker stated he was (para 1) alarmed at the issues I raised, he even said (para 4) that Operations Director Paul Watson was to assign an independent driver management party to conduct an investigation into my concerns over what he calls the motive of my immediate local management. Sadly, not surprisingly this never materialised, further ignorance from TPE towards myself.
54. You will notice in (para 5) Mr. Barker says that due to the clear harassment policy and my suggestions that local management have not acted in accordance with that policy he will ask Paul Watson to engage an independent party to review the situation and goes on to promise that any allegation will be fully investigated. Yet again, although an independent party was contacted (75a) this never materialised, details will follow later in this statement. Just the same unbelievable ignorance.
55. My illness and time off coincided with my booked annual leave, I did apply for parental leave but my requests were ignored by the Employee Relations Manager Charlotte Pears. Further ignorance against me.
56. I went back to my GP on the 3rd March 2009 feeling really rough, I was given a further 4 weeks off with depression and my dosage of medication was increased. I went to Thailand as planned on the 10th March with a return flight booked on the 27th April.
57. On the 5th March 2009, I emailed Managers Stephen Percival and Paul Watson, (76) I explained that I was on pre booked annual leave from this Friday (6th March 2009) till I return on the 27th April 2009. I also stated that I am contactable via email while away. Please note that neither manager mentioned anything to me regarding any contractual obligation that whilst on annual leave and signed off work with a doctor`s note, I needed permission from them to leave the country.
58. In Thailand I went to a place called Amnat Charoen where my wife and young son live, I obtained a house there in 2008 on a 3 year mortgage. Although I was happy to be with my wife and son, the time I spent there is very much a blur as I was extremely mentally unstable. I feel disgusted at allowing my mood swings to cause considerable pain and anguish to my wife and son, I am only glad that he will be too young to remember.
59. My wife suggested that I see a local hospital doctor at her surgery because she was worried about my behaviour. I saw the local doctor on quite a few occasions, initially around a week after arriving in Amnat Charoen and then at the beginning of April, this lady doctor wrote me a sick note to refrain from work till the 1st May (77).
60. Towards the end of April I realised that there was no way I felt up to a return journey to the UK, I cannot even now explain my mood or behaviour at that time. I have never felt like that before in my life and never want that feeling again. I went back to the lady doctor who added a further note onto my previous record to refrain from work till the 2nd June 2009.
61. On the 27th April 2009, (78) I sent an email to managers Stephen Percival and Paul Watson and union rep Malcolm Dixon that I had a current sick note dated till the 2nd June 2009, I explained if all goes well I will resume on the 3rd June.
62. On the 29th May I became aware that I had not been paid, I contacted TPE via email, (79). Miss Pears responded (79 b) by saying that she had wrote to me on 2 occasions and because I never responded my pay was stopped. Obviously I was unaware that any letters had been sent to me because of where I was, I cannot understand why upon receiving no response Miss Pears or one of my immediate managers never attempted a phone call to my home address or mobile, or even a house visit especially bearing in mind that they were aware that I was suffering depression.
I even pointed out in (76) to Managers Percival and Watson that I was contactable via email. Where is the chain of care? All other drivers off work sick have had home visits, why ignore me? Miss Pears also insinuated (79 b) that I had indicated I would definitely be resuming work on the 3rd June, my email (78) did state, “only if all goes well I will resume”.
63. On the 1st June I received an email from Miss Pears (80) (1) who assumed that I did not have a current sick note, Miss Pears also said (80) (2) that I had not sought any agreement from the company to be out of the country at the present time. I had absolutely no idea that I had to seek agreement to be out of the country. This issue will crop up again later.
64. On the 1st June I faxed TPE my sick notes, in an email (81) I stated that I am visiting the doctor the following evening and will not be back for Wednesday and that I still wish to pursue my claims, the claims of a management witch hunt against me. I explained in this email that I did apply for parental leave but never received a response and also that managers within TPE were fully aware that I was still in Thailand through speaking with drivers who knew I was there. I requested TPE fax number so I could fax them my sick notes.
65. Also, June 1st, emails were sent between Miss Pears and TPE roster clerk Marceille Tankard. The important point here is that Miss Pears said I was due back to work on or around the 27th April and Marceille confirmed that her records showed I return to work on the 28th April. There is no mention of parental leave that I applied for, which was an extra week. This is because I was ignored by Miss Pears despite many requests. I faxed my requests to Miss Pears. I do not have the faxed request sheet, but there is direct evidence from TPE that I requested parental leave later in this statement.
66. On the 3rd June I received an email from Miss Pears saying they had reinstated my pay, which received a polite response (82) The email also included an appointment with TPE`s appointed doctor`s BUPA scheduled for the 15th June.
67. Also on the 3rd June I attended a different doctor who said I should refrain from work till the 3rd July (83), she did point out that I should seek attention once I returned to the UK. On the 4th June I faxed my current sick note to TPE.
68. On the 4th June 2009 I received an email among many that I received from drivers who work for TPE. This email (84) was from Driver Geoff Lee, its contents to me at that time were of such nature to literally send me into shock. (to read out the email), it mentions an assessment Driver Lee had with Driver Manager Ged Higgins, it refers back in time to the previous week. Previous events had already confirmed that my wages were stopped and that TPE had sent correspondence to my house and were not happy at not receiving any response to their letters, but most alarmingly for me was the point, “their looking to sack you”. Driver Lee also confirmed my own thoughts when he stated that if anyone else other than myself had written the same thing nothing would happen.
69. From the 4th June onwards I continued to feel really ill and not of sound mind and very confused, I forgot about the email dated 3rd June 2009 (85), I was however trying to arrange a flight back to the UK, but I was also on a limited budget to do this. I did however this time verify that I would definitely be back after the 25th June 2009.
70. On the 17th June 2009 I received an email (86) from Miss Pears stating she had not received any notification of my faxed sick note sent on the 4th June. Miss Pears further states that TPE have no alternative to stop my pay. Furthermore Miss Pears says “that as a result of not cooperating we feel we have been left with no alternative to stop the investigation into your complaint against management conduct and to proceed with the disciplinary hearing”, arranging it for the 25th June 2009. Bearing in mind that I was covered by a doctor`s note, signed off with depression and Miss Pears wanted cooperation!
The investigation into my complaint was down to the grievance I leveled at the Managing Director Vernon Barker (87) who assured me that this would be investigated (88) in the final paragraph when he said, “I hope you feel that by ensuring independent driver management resource conduct the investigations and there is also an independent review of any alleged harassment that this matter is not being taken lightly and I have addressed your desire to bring these matters to my attention. I await with interest the outcome of the reviews. (Details of those engaged to review will be followed up in due course)”.
As I have shown, Miss Pears withdrew the independent investigation and the driver management never conducted any investigation which was to have been overseen by Operations Director Paul Watson. The question to be asked here, is why did TPE fail to carry out the request of MD Vernon Barker?
71. On the 18th June I sent an email to Miss Pears (89), explaining that I would need time to prepare my defence due to my mental state. I also informed Miss Pears that instead of using ASLEF trade union for representation I would be using the Associated Train Crew Union (ATCU).
72. On the 19th June I received an email from Miss Pears (90), saying that TPE were withholding my pay due to not attending a reasonable and lawful request to undertake a medical examination for which I received adequate notice. Miss Pears then said, “being unfit for work does not necessarily mean that you are unfit to attend a hearing”. Further stating, “you have stated that you will need time to prepare your defence as opposed to that you are medically unfit to prepare your defence”. Continuing, “we believe that you have had adequate time to prepare your defence as the documentation was sent to you on 5th February 2009”. A medical was arranged for the 25th June 2009 with BUPA. How would anyone with depression and signed off sick think straight enough to state they are medically unfit to prepare their defence? There was no consideration to my illness.
73. A letter dated the 22nd June (91) (1), added a further charge of misconduct to my 3 charges of alleged gross misconduct. Stating, “On 15th June 2009 you failed to comply with the company`s lawful and reasonable request to attend a medical examination with BUPA the company`s occupational health provider”. This letter also gave a date for the summary discipline hearing as Monday 29th June 2009. How could TPE be so sure the doctor would say I would be fit to attend this hearing?
74. This letter also changed the goalposts, it says (91) (2), “please note all three charges are allegations of gross misconduct and if ANY are proven you are at risk of summary dismissal”, yet my initial charge letter dated 5th February (92), said, “the charges are allegations of gross misconduct, if THEY are upheld you are at risk from summary dismissal”. There is a big difference from if “THEY” meaning all 3, to if “ANY” meaning any one charge, I believe this was because they clearly realised that what they had charged me with would be hard to prove.
75. I attended the BUPA medical on the 25th June 2009, the following are extracts from the doctor`s report (93) (1), “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 counseling. Either will be appropriate and possibly both in order to help him overcome his difficulties”. (93) (2)“There was clear evidence of anxiety and depression today”. After hearing what the doctor said about my condition, he is only asked one question by TPE, is this man fit to stand a hearing.
76. The doctor then says (93) (3), “there is no medical reason to prevent you continuing with the conduct hearing. Although I am sure Mr Webb will consider the period of preparation to be inadequate, you will appreciate this is not a medical condition”. Bearing in mind exactly what this doctor said about my health, “clear evidence of anxiety and depression”, which is a medical condition. That I require either medication or counseling or both.
77. Would anyone with the symptoms described by that doctor be able to do themselves justice in a hearing that has an outcome that can/will change a person`s life forever? Ask yourself, if I you were this ill, how would you be able to do yourself justice? From this doctor`s diagnosis which backs up my own GP and the Thai doctor`s assumptions, if I had been in this country would I have been of such a sound mind to meet with an investigator and explain why I believed a witch hunt by TPE management was in place against me? If I was in the UK, I wouldn`t have agreed to meet the investigator until I felt that I was in a position to be able to think straight.
Disciplinary Hearing:
78. The original hearing date of the 29th June was rescheduled for the following day Tuesday the 30th June 2009, it was held by Mark Atkinson a Route Driver Manager along with Charlotte Pears, Employee Relations Manager, my representative was Steve Trumm (ATCU) Associated Train Crew Union. (94, complete set of minutes numbered individually 1 to 401)
79. (PW 5) At the outset of the hearing I explained the following, I did not feel in the frame of mind to be able to do myself justice. As Dr David G Thomas pointed out, there was clear evidence of anxiety and depression, I needed medication and counseling, and although he stated that there is no medical reason not to attend this hearing, I was at a handicap with not being able to focus or think straight.
80. I was suspended on the 20th January and charged on the 5th February, it took 16 days to level the 3 non specific charges. The following are issues of relevance and unfairness involving all the circumstances which resulted in my dismissal.
81. (MA 8) Parental leave is mentioned, when MA says I was booked leave between 8th March and 5th, 7th May, which obviously was a mixture of annual leave, rest days and parental leave. This shows that my parental leave was known about and obviously granted, yet Miss Pears never had the decency to inform me, I am ignored yet again, with no consideration shown.
82. MA reads out Charge 1 (MA 16). "On Wednesday 14th January you failed to follow the correct procedure for reporting a defective warning horn". MA now explains what I failed to do.
1. I didn`t stop and report it to the controlling signaler. (MA 16).
The reason being is that Rule Book TW5, section 37, doesn`t say this, see Rule Book TW5 37.3 (b) Partial failure (95). 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 to establish the behaviour of the warning horn on that morning. He continues with this mindset, as will become apparent, that the warning horn failure was a complete failure. So straight away, whatever thoughts or beliefs this man has are based upon the wrong set of facts. I did try to make this point (PW 17) but wasn`t allowed. However I did eventually make this point later on, all to no avail, as you will see. Is this worthy of gross misconduct? Continuing,
2. I didn`t report it to the train operating control. (MA 16).
A partially defective warning horn fault is such a common occurrence that very few drivers bother to inform control about it. But I did attempt to inform control on two occasions, the radio calls failed to get through. It was only due to confusion and time restraints on arrival in York that it slipped my mind. But by then the warning horn fault had rectified itself and would not of required informing to control. The Duty Operations Manager at York who was on duty would have verified all the confusion and time it took to sort out, but he was never interviewed nor was my conductor on the train that morning. Is this worthy of gross misconduct? MA continues,
3. At no point did I reduce the train speed. (MA 16).
Rule Book, TW5, section 37.3 (b) partial failures (95), this does not tell me to reduce speed, again this charge is unfounded. It would have helped if Route Driver manager Barry Cook who leveled 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. Therefore I would have to question the mindset of Mr Cook and point out that how could he have, even a reasonable belief in my guilt when he fails to level a charge that the hearing officer understands? This goes all the way back to the investigation which failed to ascertain the basics. Because the investigation was too busy pointing out issues against me that were unconnected to the false allegation of a near miss. Is this worthy of gross misconduct?
4. You didn`t complete the repair book procedure correctly. (MA 16).
Very unlike me, as I fill more in than anyone, again due to the set swap at York, confusion and time constraint I simply forgot to put my name and depot on the sheet, but did readily admit when interviewed that it was mine. Is this worthy of a gross misconduct charge?
74. This letter also changed the goalposts, it says (91) (2), “please note all three charges are allegations of gross misconduct and if ANY are proven you are at risk of summary dismissal”, yet my initial charge letter dated 5th February (92), said, “the charges are allegations of gross misconduct, if THEY are upheld you are at risk from summary dismissal”. There is a big difference from if “THEY” meaning all 3, to if “ANY” meaning any one charge, I believe this was because they clearly realised that what they had charged me with would be hard to prove.
75. I attended the BUPA medical on the 25th June 2009, the following are extracts from the doctor`s report (93) (1), “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 counseling. Either will be appropriate and possibly both in order to help him overcome his difficulties”. (93) (2)“There was clear evidence of anxiety and depression today”. After hearing what the doctor said about my condition, he is only asked one question by TPE, is this man fit to stand a hearing.
76. The doctor then says (93) (3), “there is no medical reason to prevent you continuing with the conduct hearing. Although I am sure Mr Webb will consider the period of preparation to be inadequate, you will appreciate this is not a medical condition”. Bearing in mind exactly what this doctor said about my health, “clear evidence of anxiety and depression”, which is a medical condition. That I require either medication or counseling or both.
77. Would anyone with the symptoms described by that doctor be able to do themselves justice in a hearing that has an outcome that can/will change a person`s life forever? Ask yourself, if I you were this ill, how would you be able to do yourself justice? From this doctor`s diagnosis which backs up my own GP and the Thai doctor`s assumptions, if I had been in this country would I have been of such a sound mind to meet with an investigator and explain why I believed a witch hunt by TPE management was in place against me? If I was in the UK, I wouldn`t have agreed to meet the investigator until I felt that I was in a position to be able to think straight.
Disciplinary Hearing:
78. The original hearing date of the 29th June was rescheduled for the following day Tuesday the 30th June 2009, it was held by Mark Atkinson a Route Driver Manager along with Charlotte Pears, Employee Relations Manager, my representative was Steve Trumm (ATCU) Associated Train Crew Union. (94, complete set of minutes numbered individually 1 to 401)
79. (PW 5) At the outset of the hearing I explained the following, I did not feel in the frame of mind to be able to do myself justice. As Dr David G Thomas pointed out, there was clear evidence of anxiety and depression, I needed medication and counseling, and although he stated that there is no medical reason not to attend this hearing, I was at a handicap with not being able to focus or think straight.
80. I was suspended on the 20th January and charged on the 5th February, it took 16 days to level the 3 non specific charges. The following are issues of relevance and unfairness involving all the circumstances which resulted in my dismissal.
81. (MA 8) Parental leave is mentioned, when MA says I was booked leave between 8th March and 5th, 7th May, which obviously was a mixture of annual leave, rest days and parental leave. This shows that my parental leave was known about and obviously granted, yet Miss Pears never had the decency to inform me, I am ignored yet again, with no consideration shown.
82. MA reads out Charge 1 (MA 16). "On Wednesday 14th January you failed to follow the correct procedure for reporting a defective warning horn". MA now explains what I failed to do.
1. I didn`t stop and report it to the controlling signaler. (MA 16).
The reason being is that Rule Book TW5, section 37, doesn`t say this, see Rule Book TW5 37.3 (b) Partial failure (95). 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 to establish the behaviour of the warning horn on that morning. He continues with this mindset, as will become apparent, that the warning horn failure was a complete failure. So straight away, whatever thoughts or beliefs this man has are based upon the wrong set of facts. I did try to make this point (PW 17) but wasn`t allowed. However I did eventually make this point later on, all to no avail, as you will see. Is this worthy of gross misconduct? Continuing,
2. I didn`t report it to the train operating control. (MA 16).
A partially defective warning horn fault is such a common occurrence that very few drivers bother to inform control about it. But I did attempt to inform control on two occasions, the radio calls failed to get through. It was only due to confusion and time restraints on arrival in York that it slipped my mind. But by then the warning horn fault had rectified itself and would not of required informing to control. The Duty Operations Manager at York who was on duty would have verified all the confusion and time it took to sort out, but he was never interviewed nor was my conductor on the train that morning. Is this worthy of gross misconduct? MA continues,
3. At no point did I reduce the train speed. (MA 16).
Rule Book, TW5, section 37.3 (b) partial failures (95), this does not tell me to reduce speed, again this charge is unfounded. It would have helped if Route Driver manager Barry Cook who leveled 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. Therefore I would have to question the mindset of Mr Cook and point out that how could he have, even a reasonable belief in my guilt when he fails to level a charge that the hearing officer understands? This goes all the way back to the investigation which failed to ascertain the basics. Because the investigation was too busy pointing out issues against me that were unconnected to the false allegation of a near miss. Is this worthy of gross misconduct?
4. You didn`t complete the repair book procedure correctly. (MA 16).
Very unlike me, as I fill more in than anyone, again due to the set swap at York, confusion and time constraint I simply forgot to put my name and depot on the sheet, but did readily admit when interviewed that it was mine. Is this worthy of a gross misconduct charge?
5. The unit remained in service until it arrived on depot at 22.36. (MA 18).
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 TPE Defective On Train Equipment Contingency Plan, (96) (1), for a partial failure of the warning horn the in service action is, “train may complete its journey”. That train was safe to finish its journey. If any of the defects I had listed had caused any other driver that day a problem, they would have informed control, wouldn`t they? I say wouldn`t they, because I know that most of them wouldn`t bother because of their familiarity with such a common problem and occurrence, this is all down to the common response from Siemens in every repair book, “no fault found”, or “tested on depot, ok”.Drivers were fed up with this repetitive response which never addressed the problems.
83. The Defective On Train Equipment Contingency plans however do state categorically (96) (2),that units must not come off any depot and enter service with a defective warning horn. But sadly they do, and let`s remember, TPE state, “Safety is our number one priority”. Also let`s remember, I was extremely worried and still are about these warning horns and was aware that Siemens Depot were ignoring drivers reports in repair books and not taking a defective warning horn seriously. In comparison to what I allegedly did, this is a complete disregard to safety at the highest level and by many people in management positions. Here is my proof. Compare this to what I supposedly did and then ask the question, who puts people`s lives at risk and why was I deemed to have committed gross misconduct ?
1. (97) Repair slip number 033264, by R Chevalier of Manchester, a complaint that both tones of the warning horn are too quiet. Siemens response is disgraceful, "Unable to test at depot 01.30am”. It wasn’t even signed off correctly. So in other words its completely ignored, what would happen if this unit came into service later that day and killed a track worker because they did not hear the warning horn? This is the serious consequence of what could happen. That unit obviously entered service with a defective warning horn.
2. (98) One of my reports, Repair slip number 038882. Once again I encountered a complete failure of both warning horn tones. I stated that this is a, “serious safety issue” and that it happens every time the weather freezes, I also said that the horn may well work when next tested on depot, amazing that this horn was supposedly tested at 04.30am? But it was 04.30am 2 days later! So it remained in service after I reported it with a complete failure. Notice also, that all TPE control told me to do, was trip the warning horn circuit breaker! What happened to their so called Defective on Train Equipment Contingency Plans in this instance? Reduce speed to 20mph?
3. (99) Repair slip number 038883, dated 15th December 2008, by D Gyte of Scarborough, the page after the one above, once again highlighting that both tones fail to work and once again the response, " Tested on depot, all working fine ". Surely, surely it has to sink in that it`s not on the depot where the fault lies but when in service during freezing and damp conditions. This unit also clearly stayed in service from 11.50hrs that day till it was seen on the depot at 04.30am the following morning. This was another complete failure of the warning horn.
4. (100) Repair slip number 038886, by A Panier of Barrow, this report carries on from the previous two. Driver wrote, " Failure of both warning horns ". 038882 above was dated 2nd December 2008 with this report 038886 dated 31st December 2008, therefore this train was running in service for a month being susceptible to a complete failure of the warning horn, why the complete lack of care, do Siemens see a warning horn as something that doesn’t need to function correctly? Because all they have ever shown is a complete disregard to the numerous complaints, why the ignorance? Why the ignorance from TPE towards myself when I attempted to bring this to their attention? Frightening thing again, is this defect after a failure of both warning horn tones took 36 hours to be looked at.
5. (101) A recent failure from this year, it took nearly 24 hours to treat a defective warning horn that had no high tone working and the low tone failed to work above 45mph. Therefore this train had no warning horn working above 45mph. TPE Control were clearly fully aware of this yet allowed this train to run. Why? Because business comes before safety and this is how they have always behaved.
6. (102) Driver stated that the low tone wouldn`t work, that is despite using de-icer and four cans of boiling water, even stating no signs of horn being frozen. It took 3 days before this was checked on the depot. That’s 3 days running a train with a defective warning horn. The depot response is typical, “Horns tested, Ok” and its exactly what I said in my wordingof the repair slip“all I ever see is tested on depot, ok”. Then let`s remember TPE Fleet Update from January 2009 (103),“No fault found or working on arrival at depot shall no longer be acceptable answers”. There are further examples, which make me come to the conclusion that nobody cares. In hindsight I should have sat back and done absolutely nothing. It’s a gutting feeling being dismissed for trying to prevent injury or death and seeing any effort you did put in, was all to no avail. This evidence speaks for itself, TPE by allowing these trains to run, did put anyone who was trackside at risk of injury or death. To think that my horn problem that had rectified itself was so serious to warrant gross misconduct yet the examples I have just shown above indicate that all these trains ran with serious horn defects, even complete warning horn failures.
TPE have shown that my so called guilt is through how I perceived the warning horn on that morning, despite pointing out, that I encountered a partial failure of the warning horn. The above repair slips clearly show that trains with complete warning horn failures have been allowed by TPE to run in the full knowledge they had this serious safety problem and that TPE showed a complete disregard to their own defective on train equipment contingency plans.
This is all highlighted further by comments made by TPE Engineering Director Nick Donovan, reported on the 11th January 2010, who said (103a)”for reasons that we don`t fully understand, a build up of snow and ice in and around the compressor air inlets caused a complete blockage, this affected any system on the train which rely on compressed air, including the doors, the warning horns and the brakes”. Interestingly he also said in the same article, “no trains were taken out of service to carry out the work and it has caused delays rather than cancellations”.
The following also shows that a blockage of snow is not always to blame, a fleet update (103b) dated from 13th December 2009 to 9th January 2010 states, “a number of failures of one or both warning horns in the freezing conditions were also experienced, over and above those blocked with snow”. They then give an example (103c) incident No3, train 185103 ended up with no tones of the warning horn working, TPE used heat and de-icing compound to try and defrost them to regain operability. But please let`s think about this, what this is saying is simply, this train was running in service, the warning horn was one minute working sufficiently when all of a sudden it ceases working, what if at that moment it ceased to work it was required in an emergency situation? Then please let`s also realise that even when thawed out, if the weather is freezing and below, travelling at speed the wind chill will be far greater, this problem will re-surface. Who really puts the whole of the railway at risk? Continuing on with the hearing.
84. I pointed out (PW 19) that I had reported defective warning horns previously, MA (MA 20) said he wasn`t interested in previously, he asked me, “do you think this is safe”?
85. I explained (PW 21) because the weather had changed, it wouldn’t have affected the train, that the noise is always there and (PW 28) that the wipers always have faults.
86. MA, is by now starting what I considered to be a very rude, aggressive and ignorant approach, MA did not give ST chance or take notice of him, he blatantly ignored him (ST 22) STsaid“did any other driver report any kind of fault with that train subsequently”, the relevance of this key question will be shown later, and as ST quite rightly points out (ST 24), he can ask questions. (MA 25) says again “do you think its safe”? MA also failed to answer my very relevant question. (PW 32). Which was, “Why have the warning horn faults never been rectified, why should it be put on me and every other driver”? I then referred MA to the Fleet Update (104) and read out the following, “Since introduction horn faults have become prevalent during the winter months, especially during damp conditions”. Introduction was the year 2006. MA totally ignored what I said, this can only be because he cannot refute his own companies evidence that they freely admit they have been aware of horn faults since class 185 trains were brought into use in the UK in 2006.
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 TPE Defective On Train Equipment Contingency Plan, (96) (1), for a partial failure of the warning horn the in service action is, “train may complete its journey”. That train was safe to finish its journey. If any of the defects I had listed had caused any other driver that day a problem, they would have informed control, wouldn`t they? I say wouldn`t they, because I know that most of them wouldn`t bother because of their familiarity with such a common problem and occurrence, this is all down to the common response from Siemens in every repair book, “no fault found”, or “tested on depot, ok”.Drivers were fed up with this repetitive response which never addressed the problems.
83. The Defective On Train Equipment Contingency plans however do state categorically (96) (2),that units must not come off any depot and enter service with a defective warning horn. But sadly they do, and let`s remember, TPE state, “Safety is our number one priority”. Also let`s remember, I was extremely worried and still are about these warning horns and was aware that Siemens Depot were ignoring drivers reports in repair books and not taking a defective warning horn seriously. In comparison to what I allegedly did, this is a complete disregard to safety at the highest level and by many people in management positions. Here is my proof. Compare this to what I supposedly did and then ask the question, who puts people`s lives at risk and why was I deemed to have committed gross misconduct ?
1. (97) Repair slip number 033264, by R Chevalier of Manchester, a complaint that both tones of the warning horn are too quiet. Siemens response is disgraceful, "Unable to test at depot 01.30am”. It wasn’t even signed off correctly. So in other words its completely ignored, what would happen if this unit came into service later that day and killed a track worker because they did not hear the warning horn? This is the serious consequence of what could happen. That unit obviously entered service with a defective warning horn.
2. (98) One of my reports, Repair slip number 038882. Once again I encountered a complete failure of both warning horn tones. I stated that this is a, “serious safety issue” and that it happens every time the weather freezes, I also said that the horn may well work when next tested on depot, amazing that this horn was supposedly tested at 04.30am? But it was 04.30am 2 days later! So it remained in service after I reported it with a complete failure. Notice also, that all TPE control told me to do, was trip the warning horn circuit breaker! What happened to their so called Defective on Train Equipment Contingency Plans in this instance? Reduce speed to 20mph?
3. (99) Repair slip number 038883, dated 15th December 2008, by D Gyte of Scarborough, the page after the one above, once again highlighting that both tones fail to work and once again the response, " Tested on depot, all working fine ". Surely, surely it has to sink in that it`s not on the depot where the fault lies but when in service during freezing and damp conditions. This unit also clearly stayed in service from 11.50hrs that day till it was seen on the depot at 04.30am the following morning. This was another complete failure of the warning horn.
4. (100) Repair slip number 038886, by A Panier of Barrow, this report carries on from the previous two. Driver wrote, " Failure of both warning horns ". 038882 above was dated 2nd December 2008 with this report 038886 dated 31st December 2008, therefore this train was running in service for a month being susceptible to a complete failure of the warning horn, why the complete lack of care, do Siemens see a warning horn as something that doesn’t need to function correctly? Because all they have ever shown is a complete disregard to the numerous complaints, why the ignorance? Why the ignorance from TPE towards myself when I attempted to bring this to their attention? Frightening thing again, is this defect after a failure of both warning horn tones took 36 hours to be looked at.
5. (101) A recent failure from this year, it took nearly 24 hours to treat a defective warning horn that had no high tone working and the low tone failed to work above 45mph. Therefore this train had no warning horn working above 45mph. TPE Control were clearly fully aware of this yet allowed this train to run. Why? Because business comes before safety and this is how they have always behaved.
6. (102) Driver stated that the low tone wouldn`t work, that is despite using de-icer and four cans of boiling water, even stating no signs of horn being frozen. It took 3 days before this was checked on the depot. That’s 3 days running a train with a defective warning horn. The depot response is typical, “Horns tested, Ok” and its exactly what I said in my wordingof the repair slip“all I ever see is tested on depot, ok”. Then let`s remember TPE Fleet Update from January 2009 (103),“No fault found or working on arrival at depot shall no longer be acceptable answers”. There are further examples, which make me come to the conclusion that nobody cares. In hindsight I should have sat back and done absolutely nothing. It’s a gutting feeling being dismissed for trying to prevent injury or death and seeing any effort you did put in, was all to no avail. This evidence speaks for itself, TPE by allowing these trains to run, did put anyone who was trackside at risk of injury or death. To think that my horn problem that had rectified itself was so serious to warrant gross misconduct yet the examples I have just shown above indicate that all these trains ran with serious horn defects, even complete warning horn failures.
TPE have shown that my so called guilt is through how I perceived the warning horn on that morning, despite pointing out, that I encountered a partial failure of the warning horn. The above repair slips clearly show that trains with complete warning horn failures have been allowed by TPE to run in the full knowledge they had this serious safety problem and that TPE showed a complete disregard to their own defective on train equipment contingency plans.
This is all highlighted further by comments made by TPE Engineering Director Nick Donovan, reported on the 11th January 2010, who said (103a)”for reasons that we don`t fully understand, a build up of snow and ice in and around the compressor air inlets caused a complete blockage, this affected any system on the train which rely on compressed air, including the doors, the warning horns and the brakes”. Interestingly he also said in the same article, “no trains were taken out of service to carry out the work and it has caused delays rather than cancellations”.
The following also shows that a blockage of snow is not always to blame, a fleet update (103b) dated from 13th December 2009 to 9th January 2010 states, “a number of failures of one or both warning horns in the freezing conditions were also experienced, over and above those blocked with snow”. They then give an example (103c) incident No3, train 185103 ended up with no tones of the warning horn working, TPE used heat and de-icing compound to try and defrost them to regain operability. But please let`s think about this, what this is saying is simply, this train was running in service, the warning horn was one minute working sufficiently when all of a sudden it ceases working, what if at that moment it ceased to work it was required in an emergency situation? Then please let`s also realise that even when thawed out, if the weather is freezing and below, travelling at speed the wind chill will be far greater, this problem will re-surface. Who really puts the whole of the railway at risk? Continuing on with the hearing.
84. I pointed out (PW 19) that I had reported defective warning horns previously, MA (MA 20) said he wasn`t interested in previously, he asked me, “do you think this is safe”?
85. I explained (PW 21) because the weather had changed, it wouldn’t have affected the train, that the noise is always there and (PW 28) that the wipers always have faults.
86. MA, is by now starting what I considered to be a very rude, aggressive and ignorant approach, MA did not give ST chance or take notice of him, he blatantly ignored him (ST 22) STsaid“did any other driver report any kind of fault with that train subsequently”, the relevance of this key question will be shown later, and as ST quite rightly points out (ST 24), he can ask questions. (MA 25) says again “do you think its safe”? MA also failed to answer my very relevant question. (PW 32). Which was, “Why have the warning horn faults never been rectified, why should it be put on me and every other driver”? I then referred MA to the Fleet Update (104) and read out the following, “Since introduction horn faults have become prevalent during the winter months, especially during damp conditions”. Introduction was the year 2006. MA totally ignored what I said, this can only be because he cannot refute his own companies evidence that they freely admit they have been aware of horn faults since class 185 trains were brought into use in the UK in 2006.
87. MA, states (MA 33), “Reporting a near miss to ensure that faults get rectified, a clear false allegation that was premeditated “. Where does MA get the information from to prove that what I did was premeditated? The investigation never ascertained that it was premeditated, yet MA without even listening to my side of events says it was premeditated. So once again he has an assumption of something that is not fact, an assumption with which he bases his decision to dismiss upon. If you constantly report a serious life threatening issue through the correct procedures and over the YEARS are ignored, then being a responsible and extremely worried person I had to resort to a different approach because there was no other avenue left open to me. It wasn`t premeditated, it was a spur of the moment thought. I thought of it when the problems became apparent that morning, I thought of Lindsey Warrington the track worker I witnessed killed at Old Trafford. This caused my stress levels to climb due to yet another year, as soon as it gets cold, warning horn problems surface. The other two issues of wipers and noise are a daily occurrence which you get used to and are as usual ignored by all concerned.
88. (MA 35) said. “Do you think that`s the actions of a responsible professional “? My response was (PW 36) “I`ve done it previously and you’ve never pulled me on it”. It did not mean that I have reported a fabricated near miss incident before. I have behaved in the same way I did that morning as numerous other times. My familiarity with that type of scenario was second nature, predictable and has been since 2006.
89. (ST 37) points out, that MA handling of the hearing is aggressive and I totally agree with that assumption, I felt numb and found it hard to think straight, MA was hostile. ST says that he believes my charges are misconceived and that the prejudice displayed is based upon my previous trade union activities.
90. (MA 42) then says, “So reporting a malicious false allegation”. Where did this new description of the false allegation arise from? So its not only premeditated but it is also malicious, where in the investigation is what I did, described as malicious? So we have another assumption, again not based on fact and certainly not true which MA based his decision on. MA then again asks the same question as previously (MA 35), (MA 42) and a little later in (MA 44) “do you think it is the actions of a responsible, professional”. His questioning was becoming repetitive.
91. I explain my reasoning (PW 43) it was the actions of a desperate man, when I witnessed Lindsay Warrington killed because the train coming the other way never used the warning horn, I then showed MA samples of reports and repair slips I brought in, I told him that I am always ignored. MA proved exactly that, he did not look at the reports I put on his desk, not then and not later. Bearing in mind that this is my evidence which he should have taken in to account, but instead kept with tradition and ignored me.
92. MA questioning by now was really aggressive, my representative ST threatened to call the meeting to a conclusion (ST 50).
93. Between (MA 59) and (ST 86) there pursued arguments over not attending a medical even though I was covered by a sick note and nearly six thousand miles away. I thought that a sick note covered my absence (PW 76), even MA wasn`t sure, as he says (MA 77) “It might cover you”. There is apparently some legislation which will crop up later that says I should have attended the medical, however if that information is not made available to me, how was I to know?
94. MA then says (MA 87) “those are the charges obviously that you face today”, what happened to charge 3? Remembering that this also if established constituted a charge of gross misconduct. But as we will see, charge 3 was withdrawn, to me, it shows that my outcome was already known and that missing out charge 3 was not relevant in the mind of MA. The next passage is of extreme relevance, it shows the mindset of the hearing officer MA, with the responses, it also shows he couldn`t possibly have a reasonable belief in my guilt.
95. ST asks MA (ST 88) to, “Define your company`s definition of gross misconduct”?
MA responds (MA 89) with, “yes”. (No other reply is given, 5 seconds elapse.)
ST prompts MA (ST 90) asking, “What is it”?
MA responds (MA 91) with, “These clearly comply with gross misconduct”.
ST asks again (ST 92), “What is your definition of gross misconduct that you are applying to these charges”? (6 seconds elapse without any response). 3 charges levelled against me of gross misconduct and MA cannot think or indeed does not know to what specific area of gross misconduct these come under in TPE disciplinary procedures.
I interrupt the silence (PW 93), explaining if these are gross misconduct then you have a lot more people to charge the same, because they are all guilty.
MA responds (MA 94), “That`s a serious allegation, Perry”. If this allegation is that serious then why didn`t MA follow it up?
I agreed, (PW 95), and reiterate that they are all guilty.
MA eventually finds what he thinks my charges relate to, and states (MA 96), “Examples of gross misconduct that these charges are for”, (3 seconds of silence elapse) then MA says “deliberate falsification of records”, (there is then 6 seconds of silence) before MA says “Serious negligence which cause, might cause loss (?) of might cause damage or injury”, ( there is then a further 7 seconds silence) before MA says “ Breaches of health and safety rules and procedures, they all fall in the context of gross misconduct charges”.
96. It is blatantly obvious that he did not have the slightest clue why I was being charged with gross misconduct, MA had to read through TPE`s disciplinary procedures of examples of gross misconduct, (105 & 105a) to find the section under number 9 of these procedures. The time lapses show that he had to read through the examples and pick out what he thought was appropriate, hardly professional for such severe and serious charges.
97. Going back to (MA 91) where MA states that, “ THESE CLEARLY COMPLY WITH GROSS MISCONDUCT”, that says it all, in his mind he already knows the outcome. Before he even listens to my defence, he admits the charges are CLEARLY GROSS MISCONDUCT. Let`s remember, at that present time, the charge is only, “if established”. All ST asked was define TPE`s definition on gross misconduct that you are applying to these charges, but MA could not help himself, he jumped in because he already knew that whatever was said that day a decision was already made as to the outcome of my hearing. MA had already established in his mind that I was guilty, a presumption made before I had a chance to defend myself. If he was retaining an open mind with a fair and reasonable approach this answer would never be given. He let his emotion get involved because he had to show me in the worst possible light, that now explains his aggressive and rude attitude.
98. “A deliberate falsification of records”? What did I supposedly falsify? I wrote in a train vehicle repair book, what I stated about the defects were real case events, these problems had existed. The remainder concerning the near miss was not a falsification of a vehicle defect, if this is the case, then the following drivers should also be charged the same as me, (106 to 106d) these are ten repair sheets, the comments of which are nothing to do with repairs being required, similar to my comments, except these comments are far worse and could easily cause offence to be taken, yet not one of these drivers has even been spoken with, there was also many, many more times when I came across examples like these.
If I had wrote about the near miss on a drivers report form and handed it in, then that would have been a falsification of an actual record.
99. “Serious negligence which cause, might cause loss (?) of might cause damage or injury”, how could what I wrote cause loss, damage or injury? I was trying to prevent injury or death. If it`s because I supposedly allowed this train to depart with another driver then TPE are also guilty of this charge, because their Defective on train contingency plans would allow this train to run regardless and as I have already proven (97 to 102), they knowingly allow trains to run with defective warning horns.
100. “Breaches of health and safety rules and procedures, they all fall in the context of gross misconduct charges”. I challenge anyone from TPE to show me which health and safety rules and procedures I supposedly breached, this is made all the more dubious by the fact that TPE couldn`t even level specific charges from the rule book against me. So we have 3 area`s of gross misconduct which MA believes I am in breach of, for the charges against me, yet not one of them area`s carries any substance in relation to the charges.
101. MA readily admits (MA100 & MA 102) that radio contact from a train to control has its problems. ST then points out (ST 103) that I did try to contact control and that I judged it to be a partial failure of the warning horn. ST then asks the question, “What is the purpose of discipline”?
102. MA reckons (MA 104) that TPE`s discipline process is one that invokes punishment.
103. ST refers (ST 105) MA to the ACAS guidelines asking him where it states an employer is to punish members of staff.
104. MA states (MA 108), “I comply with our policy, not ACAS guidelines”. This was the general bully boy attitude we encountered throughout.
105. (ST 109) In this long passage ST examines the actual charges. Charge 1, I Failed to follow the correct reporting procedure for reporting a defective warning horn. ST argues that this cannot be classed as gross misconduct, and is more of a training issue.
106. Charge 2, I failed to follow the correct procedure for reporting a near miss, resulting in a train being taken out of service, you subsequently admitted that this was a false allegation. There was no near miss incident, so there was nothing to report. The train was not taken out of service as it continued its whole diagram. The false allegation charge was a footnote and makes no specific reference to any charge. There is absolutely no substance to this wording regards a specific charge.
107. Charge 3, I failed to follow the correct reporting procedure for reporting unit defects. ST argues that TPE failed in their obligation to do anything regarding the numerous reports on these defects and informing what remedial action was taken. Continuing from this to explain that there was no “Duty of care”, on behalf of TPE, I received scant support and that these charges are down to my Trade Union activities.
108. (ST 113 & 117). ST points out that the case is massively misconceived and that he does not think I am getting a fair hearing and that the attitude of MA is abrupt and aggressive. Due to the manner of questioning and the obvious pre-judgement factor.
109. MA then says (MA 118), “I can`t prejudge unless”, unless what? Further saying, “I certainly can`t prejudge these charges unless I hear his point of view from him”. Not Perry`s point of view but, his and him, rather rude. I don`t refer to people within any meeting as “his, him or her” in that type of context. Prejudge! Sorry but he already stated earlier that my charges, “CLEARLY COMPLY WITH GROSS MISCONDUCT”. A definite pre-judgement.
110. MA then states (MA118), “That`s why in reading the charge out, and reading out exactly what he should of done, I`ll understand why he didn`t do that”. If he had taken time to read my investigation notes and listen to me so far, he would know. All the way through this hearing and investigation it was never once explained which rules I was supposed to have broken. Proven earlier by MA stating I never complied with procedures for a complete failure of the warning horn when it was only a partial failure.
111. Furthermore, MA has never once so far explained as he says above, “reading out exactly what I should have done”. This clearly highlights his own confusion of the hearing and the purpose of his involvement as a hearing officer.
112. (ST 119). ST points out that the manner in which MA is presenting the charges, demonstrates that pre-judgement has been made. As he was reading the charges his emphasis was very apparent in the context of saying, “you did not”, it was aggressive. It also says you are guilty. His attitude was clearly biased from the start.
113. (MA 120). MA by now is even more confused, he states, “I`m reading out exactly what the process should`ve been to follow”. What process was he talking about? MA has not once so far read out exactly what I should have done including which so called procedure I should have followed. How can this man have even a reasonable belief of my guilt when he is so confused.
114. (ST & CP124 to 132) in dialogue. ST enquired why his correspondence had not been answered, it seems quite disturbing that contact is made and then ignored. CP gets confused herself when she says (CP 126), “I didn`t pick the message up and I responded to Perry”. How could CP respond when she didn`t get the message? CP then goes on to say (CP 132), “We don`t communicate with representatives, we communicate with the employee”. You would think that it would have been polite to inform ST of this.
115. The next passage clearly highlights that the management within TPE are unfamiliar with their own procedures.
116. (ST 133) ST refers to reports not being responded to, in particular the IP (Injury Prevention) reports.
117. (ST 135) ST asks if there is any window in which these reports are responded to.
118. (MA 136) MA states, “There isn`t a designated window that says you`ve gotta have an answer back by whatever days”. So we have a procedure with no designated time scale to respond.
119. (ST 137) ST asks, “is there some sort of indication that you get a response back at any point”, this is the same question as number 135, but gets a different response.
120. (MA 138). MA now states, “It all depends what the context of the report is”. We now have a procedure that discriminates on reports.
121. (ST 139) ST now asks if any issues I have raised would fall within the context of receiving a reply.
122. (MA 140). MA responds, “Normal repair book reports wouldn`t fall within”. ST specifically mentioned the IP procedure (ST 133), he never mentioned repair book sheets.
123. The IP process discussion ceases as the dialogue loses track of the initial question, but does re-appear, but before I continue, (MA 154) is talking about a repair book slip when he says, “The blue slip is faxed through to control, they make a judgement on whether the train stays in service, comes out of service, that clearly didn`t happen.” This is not true, this is not any procedure that I know. Imagine if you are nowhere near a fax machine during your shift and you fill a repair slip in within ten minutes of driving your train. The only opportunity you have of faxing is at the end of your shift. That train would therefore have stayed in service without their judgement, this is where I will continue the IP process from.
124. (PW 164) I show MA an IP report (107), dated 29th October 2008, type of incident was, “Failure of warning horn”.
The passages reads, “As previous years, first really cold spell and the warning horns freeze up, to start with the low tone wouldn`t make any noise, with minimal noise from the high tone. But at Guide Bridge on the 15mph PSR, when trying to warn p way staff (track workers), both tones failed to respond, possibility that a snow shower didn`t help the situation. This is an age old problem that never gets rectified, maybe it requires a death before a solution is found”.
125. (MA 165) MA looks at the IP report without reading it, but seems unconcerned with its content. MA then gives ST his version of what the IP procedure is.
“So the IP, for Steve`s clarity, the IP sometimes is a general staff contact interface. How are you? What would you like to discuss kind of stuff. Clearly that doesn’t generate any type of feedback. Where people are specific in hazards, other things that they want feedback for, it can work a trail where people will get feedback even if they, face to face or written, this is what we`ve found”. So the question has to be, why didn`t I get any feedback?
The very frightening issue with track workers is as any driver would tell you, the unpredictability of their movements, especially within a work site. “Familiarity breeds contempt” is the most true statement I have ever heard on the railway. The following is indicative of just that statement. (107a & 107b) It`s an extract from a Rail Accident Investigation Branch Report, on the 30th March 2009 a track worker was hit by a train travelling at just 15mph, ironically that track worker`s job role that day was to act as lookout for the group he was working with. This highlights that even a train that has a complete failure of the warning horn and is restricted to 20mph has the potential to cause death and that even with safety procedures in place, (use of a lookout), human error cannot be predicted.
(107b) shows that since 1994 there have been 20 track workers struck and killed by trains as well as accidents in which workers have been seriously injured. It is therefore imperative that a trains warning horn is in full working order at all times and not in an unpredictable state, that you never know if it will make a sound or not.
TPE documentation states (108) “We are committed to feeding back to you the corrective actions taken as a result of the IP process so that you can see the benefit”. This was from 2007. Where was their commitment to my feedback? The following are Further TPE, IP and Safety Statements.
126. (109) First Safety Principles. Number 1, do not endanger yourself or others. Report any hazardous condition or practice that may cause injury to people, property or the environment. This is my example of just this, which I have fully complied with all to no avail.
Hazardous condition: A defective warning horn that is extremely unpredictable as to whether it will work or not.
Practise: Despite numerous reports and repair book entries complaining about this, nobody takes any notice. Siemens depot keep stating, “tested on depot, ok to run or no fault found” and TPE management ignore the reports.
Potential risk: This will eventually be the cause of injury or death.
127. (110) A statement from the Managing Director, Vernon Barker, from August 2006, “I have pledged my full backing to Injury Prevention Programme and believe that it will assist in generating a positive safety culture throughout First Transpennine Express”. Positive safety culture: What`s positive about ignorance?
128. (111) First Performance Information. “Our commitment to the safety of our employees and customers through Injury Prevention means if you can`t do it safely, don`t do it”.
Can`t do it safely, don`t do it: Take a look at this scenario, a driver sets of on a journey, it’s a cold damp day, like many days we have in this country. His speed builds up to 100mph, he enters an area of twists and turns, with many bridges spanning the railway, as he approaches a left bend, he goes under a bridge, suddenly not 100ft away are a gang of track workers, he pushes his warning horn lever upwards, he gets no response, (remember the train is still moving at 100mph, at that speed, you travel 150 feet per second), when he gets over the initial shock of no response if he doesn`t freeze, he presses the lever down, again there is no response, (your still travelling at 100mph, 150 feet per second), what next? Myself personally, I can only hope and pray that this never happens, not only would the relatives of the deceased be distraught but think of the driver and what impact it would have on him. Then spare a thought for the police, ambulance and anyone else who has to take the body away and clean the mess up.
Is it safe therefore to run a train where that scenario could happen? It may well be hypothetical, but in realistic terms, it could happen. Is it safe, no it isn`t. Do TPE or Siemens take any notice? No they don`t.
129. (112) This isan extract from a paper brief sent out to all staff.
Firstly, Safety, “We are committed to making FTPE a safe place for you and our customers at all times. We can improve our already good safety record through, using the Injury Prevention principles and recording safety conversations”,what should be said now is, if you’re an health and safety rep and also called Perry Webb we will ignore you.
“Improving accident investigation and safety briefs to our staff”. Accident prevention would have been more appropriate, and as for safety briefs, they are an absolute joke, I have had 2 recorded safety briefs in 5 years that TPE were aware of (113 & 114) I had to make them aware that I remembered a previous safety brief back in 2004, so that’s 3 in 5 years. The accepted standard from the Cullen recommendations brought about by the Ladbroke Grove tragedy is 2 per year.
“If you follow the Injury Prevention principles and report unsafe conditions and challenge unsafe behaviours it will help us improve safety”.
I have reported so many unsafe behaviours and conditions, that is why I am in this tribunal now. Without picking out any individual reports, a brief glimpse through the following files is all that is needed. (115) & (116) & (117) & (118).
“If you can see the same old problem which regularly happens and you think we can be smarter and slicker, lets us know”. This statement leaves me absolutely speechless, it makes absolutely no difference how many times I see the same old problems happening time and time again, ignorance is bliss!
130. (119) “The only way to avoid accidents is to do things the safe way. Always”. TPE ignorance regarding warning horns and safety totally contradicts this statement. Continuing, “even if it takes a bit longer or needs more thought or preparation”. TPE already admit they were aware of the warning horn problem since introduction, back in 2006. It`s now 2010 and we still encounter exactly the same problem. Maybe a bit longer is required? How long? Till a death?
131. The following are Injury Prevention Principles. (120) My response to these can be found in an email I sent to MD Vernon Barker. (121) (To read out).
132. Back to the hearing report, (168 to 176). MA insists that the IP report I showed him was previous, my point is that it is also extremely relevant to my case and it never received any response for such a serious point which could as it said cause the death of a track worker one day. I then show MA another ignored IP report, it was dated 1st November 2008, (122) “PS, Warning horn frozen on this unit, not working, hence causing the driver an awkward dilemma, chances are if reported to Network Rail as it should be, they may not allow the train to run. But 30 minutes later the horn will probably thaw out. All drivers are aware these horns are defective, but opt to run the service. But if they have an incident, will any blame be theirs for not informing the signaller and following instructions”? MA wasn`t interested and sadly neither was any manager at the time I wrote this, a simple response was all that I required, bearing in mind TPE IP principles, why did they fail me?
133. Again, no feedback given whatsoever, extremely relevant to my incident. If feedback had been given to these 2 reports out of numerous that were ignored then there is every chance that we would not be in this position today. This report should have set alarm bells ringing straight away, did it mean that I actually drove this train at line speed with a complete warning horn failure? Why did the management team at York ignore these reports? It also shows that I was aware of what drivers actually did and that is, run the service regardless of a warning horn fault.
134. (ST 192) This passage explains my thought mechanism on the day in question. The main points from this are. The stress and anxiety this problem caused me. My concerns over the safety aspects of these defects in relation to running a service. The thought that no matter how many times I report this through the correct reporting procedures I am always ignored. ST points out that at worst this is a training issue and that the reporting procedure is a key part of this.
135. (MA 193) States, “I understand that”. But then his next words were. (MA 195), “and at what point does it make it right to start making stuff up”? ST had just taken 3 minutes and 13 seconds explaining the reasoning why I fabricated the report.
136. (Minutes 199 to 211). I start off by trying to go through charge number 1, but MA keeps rudely interrupting. He does not give me the chance to speak. This is not the first time that he prevented me from putting my point of view across. However yet again MA makes the comment (MA 206) about my concerns on the train faults, not his concerns, and that I could have made sure this train wouldn`t have gone any further once I arrived in York. He should/would have known that this train would have run because the cab I was in on arrival at York was not the one the train was now being driven from and TPE DOTE contingency plans would allow that train to run. Yet he chose to ignore these relevant facts because it helped my argument.
137. (PW 211).This is where I explain again that the fault was a partial failure and that I attempted to call control via the NRN radio. I then ask the question, “Does the NRN show up on a down load”?
138. (MA 212). MA responds, “NOT SURE”. A Route Driver Manager unsure about basic train workings.
139. (PW 213) I explain the events leading up to and arriving in York, there was quite a bit of confusion which was also time consuming.
140. (MA 214 & 216) MA Then says that my duty is the concerns on the train, but with no immediate relieving driver there, I turned my attention to help the passengers who were boarding the wrong train. Again MA makes the point that I am, “concerned about the state of the train”, not that he was concerned.
141. (MA 218) MA says, “not to worry about people getting on and off with cases, deal with what you think is right”. That is exactly what I did at the time, my decision. I didn`t want elderly and women with small children dragging their cases onto a train that was not going forward to Manchester Airport.
142. (PW 219) This is where I explain the defects and my knowledge that the train was not leaving with any defect that could result in harm or damage. It was definitely, definitely safe to run that train.
143. (237 to 244) This is about safety encounters, I explain that they last all of five minutes and are done either in your break or at the end of your shift, that drivers are not listening and just want to get off home.
144. (MA 245). MA responds by saying, “When Joe Bloggs wants to go home”, MA still does not understand the relevance of a serious safety related issue, an extremely petulant and what I would call disgraceful statement to say for a Senior Manager. I am trying to explain that these encounters do not work.
145. (MA 265). MA says, “If you are so serious to start making a song and dance about trying to get it out of traffic for a near miss”. An unbelievable statement given all the facts he has had so far. Where throughout this entire investigation and this hearing have I made this so called SONG AND DANCE? It is extremely evident once again that MA is losing the plot, he quite clearly is working to the agenda preset before this hearing began, that I will be found guilty at all cost.
The facts:
There was no near miss.
I never once attempted to get the unit taken out of traffic.
Where does my, “SONG AND DANCE”, come from?
146. MA is totally confused, there is no evidence anywhere to suggest that my agenda was to get that unit withdrawn from service. His judgment is clearly impaired.
147. (PW 268). I then explain that I didn`t try to get it out of traffic.
148. (MA 269). MA asks, “So why put that on a repair book”?
149. (PW271). PW I explain that if it was an attempt to get it out of traffic, I would have complained to get it out of traffic.
150. (MA 272). MA response was, “SO WHAT WAS THE PURPOSE OF THAT”? This far into this hearing and with all the previous interview notes and facts, how many more times did he want me to explain. Or as we were thinking it was a case of not taking notice of us because my fate was already sealed regardless.
151. (273 to 276). Myself & ST explain briefly what was wrote and why I wrote it, we then talk about the engineer Steve Bridge assuming the temperature was at a level not to cause a problem with the warning horn and not taking time out to check the temperature in another part of the country to where he was that morning. I then explained that it was a rather blasé attitude to take.
152. (MA 277). MA responds, “WHAT DO YOU WANT THEM TO CHECK”, I am really sorry but was this man in the same room as ourselves? From the passage above is it not clear enough what we are talking about? This behaviour is evident throughout the course of this meeting, he has no interest in what we have to say, again pointing to the only conclusion available for this. The outcome was already known.
153. (278 & 279). Myself & ST explain the difference in temperature. 3 and 4 degrees difference.
154. (MA 283). MA concern (MA 260 & 262) is that I allowed the train to remain in traffic. As I previously explained on the same subject. My decision was based on the evidence I had before me and that was everything worked satisfactorily to allow a train to run. Every time a driver leaves any train they make the same conscious decision. Does MA want us to ring for advice on each occasion we leave a train?
155. (ST 284). ST makes a very appropriate comment, “First Group have allowed it to remain in service”. Due to the fact that you are aware, “SINCE INTRODUCTION”, of these faults.
156. (PW 285). To which I quite rightly make the point that by doing that, TPE put the onus on every driver. THIS IS THE MAIN REASON WHY I AM NOW IN THIS POSITION, TPE FAILED, NOT ME. TPE made the decision to allow these trains to run fully aware of the implications, or maybe not aware?
157. (MA 286). MA states, “On that day they did not know that unit you had, (had) a problem with it until it got to the depot”. I never left the unit with a problem, every unit is the same. But as there were problems found when on depot, then why didn`t any other driver report a defect? Remember, not reporting defects through the correct procedure warrants a “Gross Misconduct” charge. So why wasn`t any of them charged? We all know that answer, blatant discrimination against me for previous trade union activities.
158. (MA 288). MA asks, “Is this the only train you have driven that`s had cold issue`s with the weather”? This highlights that once again that he is fully aware that problems exist in cold weather, yet as a Senior Manager with the responsibilities as laid out in his job description, what has he ever done about this except turn the proverbial blind eye? (123) Number 4 is a specific responsibility for MA, Route Driver Manager, “That any unsafe activity is immediately stopped and prevented from continuing until adequate measures have been taken to reduce the risk associated with that activity to as low as reasonably practicable”. The warning horns and their unpredictability make it totally unsafe in certain weather conditions, no adequate measures were in place for me. Further proof follows next.
159. (MA 290). MA states, “I don`t think you will find a fleet in the country that doesn`t struggle with it because of the positioning of the horn`s because they are exposed to the elements”. So because he thinks every train operating company run this way, it is acceptable for TPE to do this. He freely admits guilt by this statement, which again highlights that TPE FAILED ME, again a Senior Manager aware of such a dangerous and life threatening situation, yet what has he done about it? How about practicing these 3 SAFETY PRINCIPLES (120), or don`t these count for Senior Managers or any Managers.
160. Number 1. Accepting responsibility for your own safety and for the safety of those working around you.
161. Number 3. Reporting anything you think is unsafe, no matter how small you think it may be.
162. Number 8. Zero tolerance of unsafe behaviours at all levels of the organisation.
163. These are TPE`s own safety principals, this is before I even mention the Health and Safety at Work Act 1974, But let`s take a look at this act. Remembering the words, “SINCE INTRODUCTION” and “SAFETY TRAINING”.
164. 2 General duties of employers to their employees
(1) It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees
(a) the provision and maintenance of plant and systems of work that are,so far as is reasonably practicable, safe and without risks to health;
(c) the provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of his employees;
(e) the provision and maintenance of a working environment for his employees that is, so far as is reasonably practicable, safe, without risks to health, and adequate as regards facilities and arrangements for their welfare at work.
165. 3 General duties of employers and self-employed to persons other than their
Employees
(1) It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.
166. 7 General duties of employees at work
It shall be the duty of every employee while at work--
(a) to take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions at work; and(b) as regards any duty or requirement imposed on his employer or any other person by or under any of the relevant statutory provisions, to cooperate with him so far as is necessary to enable that duty or requirement to be performed or complied with.
167. (ST 291). ST Points out that the precedent set by TPE in that Managers and Engineers being fully aware of this problem yet allowing these trains to run sends the message out that its acceptable to run with a warning horn fault. That it`s Management who should take the lead and stop this unsafe working practice. For over 3 years, TPE and Siemens have allowed this unsafe working practice to continue and it still continues to this day.
168. (MA 292). MA states, “So if you had a horn that was slightly defective, would you say it was controllable in traffic”?
169. (MA 296). MA continues, “Could you control the situation? If you were the driver and your horn is partially defective, fully defective, is it controllable? Safely? Is that situation controllable in a safe manner”?
170. (ST 297). ST responds “Of course it`s controllable. You obviously restrict your speed appropriately”.
171. (MA 298). MA says to me, “WHY DIDN`T YOU”? Yet again this categorically proves MA and Manager Stephen Percival failed from the outset to discover all the facts. To me the horn defect was a PARTIAL FAILURE, TW5 37.3 rule book (124) and TPE`s own DOTE contingency plans (125) allow the train to run at line speed and complete its journey. But why wasn`t this sorted in the investigation? Furthermore I had made it quite clear earlier (PW 21) (PW 26) (PW 211) (PW 219) (ST 248) that the defect was a partial failure, yet MA can only focus on the worst case scenario for me, that of a complete failure, yet again his judgment is based on the wrong set of facts, despite being constantly informed exactly what type of horn defect this unit had.
172. (MA 300). MA asks if I thought it was really unsafe. Not the belief that he found it unsafe.
173. (PW 302). I responded by saying, “I didn`t say it was completely unsafe because...”.
174. (MA 303). MA interrupts and says, “It was still working”. This was just one of 20 interruptions in
total.
175. (PW 304) PW, My response was “on and off , it`s all right you know, (meaning this is a very common occurrence which we all as drivers have to put up with), there like that, they all are”.
176. (ST 305). ST asks a very relevant question, “Perry has run a train in public service which should not have run. Is that the position you occupy”? The response as you will see has no relevance to the question, he cannot answer the question for fear of incriminating himself. He knows that train would have remained in service regardless.
177. (MA 306). MA response to the question is as I just pointed out, this is what he replied, “I am trying to understand the whole picture of why he has had these chances to make a song and dance as he put it”. I cannot understand how the question had this response but it shows as many times previously that MA is trying to show me in the worst possible light, yet amazingly once again I have never said the term or shown any indication of, “MAKING A SONG AND DANCE”, let`s look back at number 265 which said the following, MA says, “If you are so serious to start making a song and dance about trying to get it out of traffic for a near miss”. So it was not me that mentioned a song and dance, MA was obviously trying to justify the pre-meditated decision and realised we have a very strong case. He had already made too many mistakes.
178. (ST 308). ST mentions the range of reports that I have previously submitted. (all available to see on that day and on the table in front of MA).
179. (MA 310). MA admits there is a range of reports but says he is only interested in this one, because this is the one he knows about.
180. (PW 311). PW I explain that they are relevant and its evidence.
181. (MA 312). MA says, “I understand that”. He clearly did not understand. In the next sentence (PW 313) I actually say,“ignorance”.
182. (MA 314). MA says, “I am trying to understand events on this day why he acted like he did”, you would think that it has been clearly explained by now? What more can I add? It was explained clearly back in my investigatory interviews.
183. (315 & 317). I explain because I was at the end of my tether, sick of reporting these defects to which MA says again (MA 316),“I understand that, I understand what you’re saying”. If he fully understood then why the same old questioning?
184. (ST 318). ST puts it to MA, how do we find a solution for this problem on warning horns, do drivers work to standards and is a train taken out of service every time there is a horn defect. I thought this was a sympathetic approach to this serious subject and certainly never expected such a poor and thoughtless answer from someone who is supposed to be a professional person in a senior managerial role.
185. (MA 319). MA replies, “I don`t know and I don`t think that is for debate in this forum”. I wish we were in a forum, ask yourself why can`t MA answer these extremely relevant questions? But then again, not one manager could answer me since the end of 2006 on this issue, so I don`t expect an answer now. Lets remember back to MA saying (MA 118), “and that’s why in reading the charges out, and reading out exactly what he should have done, I`ll understand why he didn`t do that”. All we were asking is what should I have done.
186. (ST 320). ST Asks where MA thinks we can debate this, and cannot understand why MA cannot explain the appropriate way I should have conducted myself on that day and points out that discipline should be used to correct conduct.
187. (MA 321). MA then asks, “You asking how we keep trains in service”?
188. (MA 323). MA then says, “Not specifically to correct Perry`s issues”. This is clearly the answer to ST statement, surely the purpose of the discipline process is to correct conduct, to identify what the faults are and correct them. Which once again highlights the fact that there is a pre-determined outcome to this hearing, he is freely admitting that there will be no correction of conduct because as we thought all along the outcome had a pre-determined conclusion.
189. (ST 324). ST asks “Well surely the two are linked. If you want your 185`s to continue running in inclement weather, your drivers will be experiencing the same sort of thing that Perry has experienced. Do you want them to carry on running? Or do you want to pull them as soon as you have got these defects”?
190. (MA 325). MA says, “He needs to comply with instructions”. MA all through this hearing has been confused over what instructions I should have followed and it still has not been mentioned which instructions or particular rules I have breached. That is because right from Barry Cooks charges nobody knew and they still don`t. Absolute disgrace. Again MA does not answer the question.
191. (ST 326). ST asks, “WHICH ARE”. (MA takes time to answer).
192. (MA 327). MA responds eventually, “THAT THEY REPORT CORRECTLY”, he hasn`t got a clue which set of rules or instructions or so called procedures I should have followed. It points to nothing more than a sham of an investigation and a sham of a hearing. All ST wanted was an answer to the appropriate way (ST 320) I should have conducted myself that day. Yet I should have complied with instructions and reported correctly. How many times previously had I complied with instructions and reported correctly?
193. (ST 328). ST asks, “So you can report them correctly and still run them”?
194. (MA 329). MA answers, “They are the guys that put defects in the book. Until they do that (we) they do not know what is wrong with that train”. Again this is not answering the question. But what an answer anyway, so a driver writes a defect sheet out like I did, Siemens and control eventually find out the problem. What is his point?
195. (ST 330). ST points out again the reason why I thought it absolutely necessary to fabricate the near miss. “But the defects are going in the book and yet there is no apparent action and the action that is put down doesn't appear to be following through into practice, and therefore your have built up frustration. And therefore we have got to a situation where adriver has made the call that he has made to try to highlight the safety issue, as I say we may disagree or agree, which ever, in relation to how he has done it, but the motive behind it was the safety ethic and we don't appear to be getting to a point where I can understand exactly what you would have liked him to have done other than down a report, just like he has done time and time again and receive no further feedback whatsoever. And apparently, theses trains have been going in service for how long now? It doesn't say here. How long have you had these things? Years”? I explain that it is 3 years (PW 331).
As I have shown, feedback is non existent, TPE even admit in their Fleet Update dated from October to November 2008 (125a) that faults can be logged in repair books multiple times within one week, where no action is taken on the depot and that this can be very frustrating. They actually state, “We (are) engaging with suppliers to ensure appropriate follow up action is recorded, so our staff are aware the action being taken to address issues is raised”. TPE call this defect book management. This goes beyond frustration, especially when they admit to being aware that no fault found and tested on depot is not acceptable, yet as all my evidence shows, this is still going on today nearly 2 years after this article.
196. (ST 332). ST reasons the way forward, he states, “3 years! I don't know, this is where we work as a team, you have got the management side and the staff side and what we want to try and come up with is what is the best way, what is it you want your guys to do out there? Because when these issues are going to come up again as they will do in the not too distant future, you’re going to have other people that may be upset stressed and concerned about running these services and there doesn't appear to be a definitive right well we will take them out of service then”. Again no answer to the questions.
197. (MA 333). MA states, “I think there's lots of drivers that are frustrated with different things within their job but they don't act like that”. “They don’t act like that”, like what? The way in which MA states this, makes it out that I have committed the crime of the century.
198. (MA 335). MA says again, “I've found loads of frustrations when I was a driver but I didn't go acting like that”. I expect he got responses to reports that he submitted if indeed he bothered to report anything.
199. (MA 337). MA responds to ST mentioning a certified illness (ST 336), whereby MA says that I “committed” an event and that “allegedly” my illness came on after the event. I would like to say, that constant ignorance made me feel extremely low, it hammers your self esteem.The levels of ignorance made me feel totally worthless and that is why I gave up the role as health and safety representative, (MA 339) states, “Well I can`t comment before the event can I”? “I can only go on what I have seen post this”. MA could have taken time to read through the pile of evidence I had brought, in this evidence was information to suggest that I had previous run ins with TPE management, was sent for a medical examination and that ignorance was the only ingredient responsible for my actions. Ignorance is mental torture, I defy anyone to say otherwise, especially looking at the levels of ignorance I had to endure, there are plenty more examples to follow.
200. (ST 340) ST in this paragraph sums up this situation, he says, “Well I think the overall circumstances lead back to a clear indication looking at this, a continued series of reports that had been put in, leads inexorably to a point where something is going to happen. This is a colleague who was involved in a running of the line incident where somebody died in front of his train (ST was slightly mistaken, I witnessed the death of Lindsey Warrington by a train travelling towards me at Old Trafford, I have however been involved in 3 fatality`s involving the train I was driving), ST continues, and where he then received various allegations as to whether he was actually there or not, which were found to be misplaced, he was put under pressure because of that. He clearly has a regard to focus with this particular safety issue because of his personal experience”.
201. (MA 341). MA states, “I do not mind him having a focus on safety as long as it`s conducted properly”. How many more reports do TPE require? How many times did I conduct myself properly but got no response? The only response I ever got was IGNORANCE. Perhaps TPE should conduct themselves correctly. MA ignores the fact that time and time again I reported correctly.
202. (ST 342). ST points out that if not done correctly, that Management would step in and show me how to do it. Main point here is, In the last 4 years I must have been doing it correctly otherwise surely TPE Management would have made me aware I was wrong?
203. (PW 343). PW I stated, “I have done these type of things previously, I`ve not even had a warning, it`s not the first time”. Meaning not informing control on a partial defect, sometimes not faxing the repair book slip, also the amount of reports I submit and the amount of defect reports I submit, with hard hitting topics, including using scenario`s to try and show what I consider a danger.
204. (ST 344). ST “and again if management have an issue with the way a driver is reporting incidents, fine that's the purpose of you guys having that over watch duty, you're looking at what's going on, you're seeing the bigger picture you can step in. But being able to see the bigger picture also involves being able to identify colleagues that have obviously got a particular issue, maybe got a particular duty of care that the company can step in address. The approach that the company has taken here which is a clear in my view massive over reaction to it is not likely to generate what the business is going to need”. There was never any duty of care shown towards me. The only duty of care that I got was ignorance.
205. (PW 345). PW I point out that I am the only driver with 2 personal boxes, due to my constant reporting of faults and defects, (which does highlight that I am quite aware of how to report a defect), yet one minor blip and TPE call it “Gross Misconduct”. Also pointing out that most of it was from being the health and safety rep and that I have never had even a verbal or written warning about my reports. Yet in the investigation SP makes a big issue of the way I supposedly wrote my reports, so why wasn`t I disciplined in any way for this especially in light of the history surrounding the way I allegedly write my reports, further information on this will be disclosed later in this statement.
206. (MA 346). The next statement will be so familiar, MA says, “Why the need to do it? “Why go down the road”. This is the only line of questioning he keeps saying, it`s become like a war time interrogation. How many more times did he want an explanation? Why hasn`t this man taken notice of what I was telling him?
207. (347 to 356). MA Keeps going over the same ground, he has no other line of questioning, what more can I say on this matter. YES I made the near miss up. I do point out that it is a build up of frustration, (MA 354) MA even states, “I understand that drivers get frustrated with things”. With what I had presented so far, he could never have an understanding of the frustrations that I endured.
208. (ST 357). ST Has a very common sense approach in this passage, he talks about how the system has broken down with feedback, but there is in place a process to deal with this situation, it`s called IP (Injury Prevention), but sadly it has failed miserably. The problem we have is management clearly don`t want reports put in, so by acting towards myself in this manner they silence their biggest critic hence putting anyone else of from complaining or reporting anything.
209. (PW 358). I explain that in 2004 I was suspended over health and safety issues and sent to see Dr Pearlman in Leeds (126 & 126a), the following is in chronological order from the year 2004. In February 2004, First Group, Transpennine Express took over the franchise, from the very beginning there was hostility towards me and no response to reports that I submitted.
1. The following that occurred throughout 2004 set the trend for each year after, except, each year the ignorance got gradually worse. On March 9th 2004, Manager John Moans has an informal chat with me regarding my wording of driver reports, the informal chat however was recorded on my personal file, (127). The report highlights 3 issues,
a. Reports with disparaging or insulting comments on them (para 2), which I totally deny.
b. The offer to give me an insight (para 3) into how TPE (TransPennine Express) departments work together.
c. The clear understanding of the manager that frustration was at the root of my reports (para 4).
2. That letter (127), by Manager John Moans, clearly stated (para 3), (b) that arrangements had been made for me to work with the fleet department and operations control for one week in an effort to gain an understanding of how they work in conjunction with the driving grade. This letter was not given to me; I only became aware that it existed when it appeared in TPE draft bundle of documents.
3. However, more than a month later an email, by the same Manager John Moans, (128) dated 20th April 2004 (para 2), is a request asking for help in organising my working with the fleet department and operations control, this was agreed by Technical Engineering Manager Steven Bridge. This therefore proves that arrangements that were advised to me on the 9th March 2004 were never in place.
4. A letter (129a) dated only as May 2004 written by Manager Chris Swift, refers to a repair slip and was obviously unhappy at comments made on it, the slip which is of extreme relevance was not supplied. There are issues within this letter that I totally disagree with. Chris Swift does however make this point. “He feels that he is just not getting anywhere with his reports and when nothing is ever done he gets extremely frustrated”. This letter was not given to myself, I only became aware that it existed when it appeared in TPE draft bundle of documents.
5. On the 9th June, I was charged with making unsuitable and derogatory remarks on a vehicle repair slip (130 & 131), again the slip is not provided, the remarks would have been hard hitting and highlighting serious safety risks but definitely not derogatory.
6. During this year (2004) there was a problem with cab heater boxes underneath the driver`s seat giving off heat even though the heater was switched off. On the 10th June 2004, (132), I wrote a drivers report at 12.45hrs that day complaining about extreme heat in the driving cab and the fact that I had reported this previously, even suggesting a solution which was in a previous report dated 2 days earlier, all to no avail. Later on that day in a different train exactly the same problem occurred. As the report suggests, (133), I had finally come to the end of my tether, I stated, “I have now reached boiling point, my anger and stress levels cannot cope with this anymore, I haven`t had any replies to recent reports”. The following day, I had obviously calmed down, so the build up begins again (134) reports the same problem.
7. On the 15th June, this is remember 5 days after those reports were submitted, Manager David Pierce met me and said I was to be taken off driving and sent for a medical to determine my mental state. (135), my mental state was of such 5 days earlier! Mr Pierce wrote in his letter which I had never seen previously, that “I responded with, things just got me so angry that I was putting in reports and that nothing was being done about it”. Remember this was back in 2004, it was exactly the same in 2009.
8. The following is a letter from Manager John Moans to the BUPA Doctor dated 15th June 2004, (136 & 136a) He states that my file is extensive and catalogues a massive number of issues, he claims that these reports contain associated derogatory remarks, which I totally deny. He then states that when TPE took over I was briefed on First Groups commitment to improving information flow to staff and to develop a culture of staff involvement. If this was the case, then we would not be in this tribunal now. What is said next makes a complete mockery of what was just said, “Driver Webb was to attend a 5 day job mirroring exercise with Transpennine Control and fleet engineers next week, this has now been cancelled”! It then continues to point out that the reports I submit are abusive, again, which I totally deny. He then states that, “Webb`s actions are the actions of a member of staff that has taken everything out of perspective”. Because I have a passion for health and safety, challenging conditions I feel are dangerous, I supposedly have taken everything out of perspective. Manager Moans then makes six points he asks the Doctor for guidance upon, in the third point, he states, “Is this driver becoming paranoid. I have assured him that the company is doing everything possible to meet his demands”. I have never made any demands, all I ever asked for was involvement and answers to my reports. In point 4, he makes it look like every report I submit is a deliberate transgression, my reports were hard hitting and very much to the point. In the sixth point, I was never offered counseling or refused any help. None of Manager Moans concerns were talked about with me, I also like all previous correspondence have never seen this letter until I received from BUPA on request of my file.
9. On the 17th June 2004, I had an appointment with Doctor J Pearlman, the following are what she ascertained in our conversation, (137)
a. Health & Safety Rep for 5 years, feels confident.
b. Reports put in about issues, but comments nothing ever done.
c. Still persistently ignored.
d. States no change.
e. Angry & frustrated in work issues.
f. Specifically perceives his line management do not talk to him and explain why his queries are dealt with.
g. Presented to me 13 vehicle repair sheets, Arriva, states all these Transpennine. (Arriva mentioned because the repair book was written by Arriva.)
h. His problem is, H&S Rep is voice of people.
i. His perception, problem is being ignored.
j. (138) Perry presented calm and rational and feels frustrated as Health & Safety Rep. Unable to support his colleagues on numerous issues, re health and safety issues he brings to your attention. There are no medical reasons to prevent him driving. I would suggest that a case conference be had to review the management issues he is focusing on.
No disrespect, but this was all I ever wanted, someone to talk the issues over with. Yet not one so called manager had the decency to do this.
10. Dr Pearlmans reply to manager John Moans, (139). Are four paragraphs that sum up the problem adequately. (para 1) States my case, “Perry states very clearly that he is frustrated as he is unable to support his colleagues with the numerous issues regarding health and safety that are brought to his attention. He perceives that he is ignored by management”.
The following are the key points Doctor Pearlman makes.
11. (para 2) “I would suggest that a way forward with this situation would be a case conference with him to review the management issues that he is focusing on”.
12. (para 3) “I do feel that counseling would help but, much more specifically, with regard to dealing with the frustrations that he clearly perceives within his job”.
13. (para 4) “All that I can advise is that an individual risk assessment be undertaken by the driver team manager and liaison be had with him regarding his other concerns of management issues”.
14. I was sent to this doctor because TPE perceived my actions that of someone who was not mentally stable, they wanted to know (140) why I was supposedly deliberately transgressing and continuing to submit these reports. Doctor Pearlman gave her opinion, basically my prescription. So why was not one of her recommendations adhered to? I am quite sure if the doctor had said this man has worrying signs and I feel he is no longer suitable to drive a train, I would have been taken out of the driving grade. TPE ignored Doctor Pearlman`s diagnosis and remedy. Taking this into account, I think that nearly 5 years further on with unbelievable ignorance displayed, I did extremely well to try and keep myself calm and sane.
15. TPE ignorance was nothing more than bullying and harassment, it is clearly defined in their bullying and harassment procedures, TPE define it as (141), “Bullying may be characterised as offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means intended to undermine, humiliate, denigrate or injure the recipient. Bullying or harassment may be by an individual against an individual (perhaps by someone in a position of authority such as a manager or supervisor) or involve groups of people. It may be obvious or it may be insidious. Whatever form it takes, it is unwarranted and unwelcome to the individual”.
16. On reading that passage, I found their ignorance to be offensive, I deserved some respect. It was clearly intimidating, the fact that they were aware the longer they ignored me the more I would retaliate. To subject any individual to this level of ignorance had to be borne out of ill will, this was malicious. Their ignorance was also a powerful weapon which undermined my efforts which in turn was a control measure to the rest of staff to say, look, if he cannot get anywhere then you have no hope. This is where the humiliation comes in, the humiliation at continuing to try and improve everyone`s working environment and make safety the number one priority (supposedly a First Group value) yet openly be ignored and get absolutely nowhere. Finally as for denigrate, you only need to look at the investigation report to see the attempts to make me look as bad as possible by including references that I mentioned earlier (142) & (143) & (144). When looking at (144), Mr. Percival in his investigation says it was an “informal discussion”, the letter says interview.
17. There is also the insidious behaviour of these people, the gradual efforts to produce an explosion, including efforts of entrapment (145). The external investigation that MD Vernon Barker promised would have been given all my evidence, but as I have shown Miss Pears withdrew the investigation (146).
18. Following on in the year 2004, Referring back to the extreme heat caused by cab heater boxes, (147 & 148) both complain about the exact same issue.
19. On the 27th July 2004 I had a disciplinary hearing for supposedly writing unsuitable and derogatory remarks on a vehicle repair slip. I totally deny that whatever I wrote was unsuitable or derogatory, the repair slip has not been provided.
20. My representative Nick Whitehead stated (149) that as Dr Pearlman had pointed out, a joint discussion carried out could have prevented the problem from arising. That I persistently submit written reports and nothing is being done about them.
21. Manager John Moans stated (150) that I had been offered Care First Support and anger management classes, both of which were never offered.
22. Manager John Moans then states, “By placing unsuitable remarks on the documentation, (which I totally deny), it puts barriers up, people get frustrated and it shows the driver grade in poor light. I don’t want Perry to stop submitting reports, but I want factual reports”. Unbelievably, he has no comprehension of my frustrations especially as all my reports are factual. There are so many reports in my case file, they are there for everyone to see, I challenge anyone to show me which reports from the many in the case files were not factual.
23. At the end of this meeting, Manager Moans mentions a wrong routing issue, he says that he will not take formal action on this. This was only because of the health and safety implications involved in this incident which I had made the company aware of on numerous occasions. If you cannot see out of a driver`s window because it is covered in dead flies and the windscreen water containers are never topped up, then your vision is severely hindered.
24. The outcome of this hearing was a severe reprimand (para 4), which I appealed. There was also a warning that any further instances whereby I submit documentation containing derogatory or unsuitable remarks, I may be treated more severely. Please note, I was never charged after this incident with claims that I had made any further derogatory comments, although as we see in the investigation report (151) the investigating officer Stephen Percival states, “the driver has a long-standing and recorded history of submitting reports containing sarcastic and derogatory comments”. If this was true, then why hadn`t TPE charged me accordingly?
25. A further report regarding the working environment continuing from my earlier reports, (152) which due to excessive heat in the cab led to a refusal to work. My report makes it quite clear, “I brought this to your attention on numerous occasions, verbally and in written reports, but nobody listens to me or takes any notice”.
26. This report was however one of the very few that received a response (153) but possibly only because information was requested from me concerning another issue. There are 3 main points to take from this report written by Manager Chris Vickers.
a. “We have also contacted fleet verbally and via email in respect of the cab heater problem, (an acknowledgement that there was a problem), and as of yet not received a reply”. It shows the breakdown in communications within TPE.
b. “I can only apologise for the slow response but that is the way things seem to work at the moment, things will hopefully improve”. I wish things had of improved, but sadly it just got worse.
c. “In your report you state that you have a simple solution to these problems, could you please forward these to me in writing and I will take them up with fleet”. All Manager Chris Vickers had to do was read through my previous reports.
27. Further evidence of being ignored transpired when Manager John Moans wrote to the ASLEF York branch chairman, (154 & 155), complaining about my response to a letter sent from Manager Chris Munnerley to me. Why couldn’t Mr. Moans speak with me?
28. On the 2nd November 2004 I had my disciplinary appeal hearing (156). My representative Nick Whitehead made the point (para 7) about the doctor`s recommendation to have a joint discussion with line managers to clear the air. Like I pointed out previously, this never happened.
29. Andrew Gorton the manager taking this appeal said (157) (para 2) , “John Moans had liaised with colleagues in fleet and the control department with a view to myself gaining some understanding of the procedures along with the stresses of these departments”. “It was considered inappropriate to follow up the planned liaison with fleet and myself at this point”. I find this totally amazing, I am constantly ignored, because I continue to bring to their attention health and safety issues which they deem derogatory, they behave as if I am a naughty schoolboy and withdraw help despite the doctor making it a clear recommendation, bearing in mind that they sent me to this doctor. I do not think they would have ignored her advice if she found in their favour. This childish attitude just inflamed an already fragile relationship leaving me with a further kick in the teeth and feeling of rejection.
30. Andrew Gorton then said (para 6) that the company had tried to offer guidance and support but to no avail? How could I be offered guidance if they refuse to meet with me? I was offered no support whatsoever.
31. I asked (para 7) why my reports had been consistently ignored, the response from Andrew Gorton was typical of the ignorance, (para 10) he will not be drawn in to discussing particular action for individual issues. To think that I am already frustrated and then to hear this response is just so demoralising. This is a senior manager with no understanding of health and safety legislation. I only wanted someone to speak with me. By not responding is the cause of all the problems. Secondly he says that he can sense my frustration, but then urges me, “not to continue with my prolific report writing campaign against fleet and the aggressive and personal manner in which I allege the companies breach of Health and Safety legislation in respect of ETS”. (Environmental Tobacco Smoke). He then points out that there are procedures and reporting lines to be followed. I simply cannot win, I even feel frustrated writing this statement, I have followed procedures and reporting lines, but how many more times, what can I do, when I am always ignored.
32. As an health and safety representative I was duty bound to make representations on my own concerns and that of fellow workers, I found serious concerns with fleet issues that had the potential to cause a serious incident. As for ETS, I wanted to be able to work in a smoke free environment and have my rest breaks in the same smoke free environment. Because I used health and safety law to promote my argument for a smoke free environment, TPE clearly took offence. Once again ignoring my representations on this issue and requesting that I refrain from writing reports.
33. I even suggested a way forward (158) (para 1) whereby we could get the fleet department, HMRI and union representatives together to set out a plan of action. Sadly as you can see in the transcript this was totally ignored.
34. Andrew Gorton then states (para 2) that my views were allowing me to become totally distracted which he thought was disturbing. What I find hard to believe by this comment is, if as a senior manager he has this concern, then he should have taken me off driving, because a distracted driver is clearly a liability and dangerous. What he forgets is, Manager John Moans thought this back in June, when he thought I was “paranoid”. The doctor totally disagreed.
35. At the end of this meeting I asked (para 7) Andrew Gorton if he proposed to change things and move forward, he agreed to sit down with me after the meeting. Sadly this never materialised as he had to rush back to his depot in Manchester.
36. On the 8th November 2004, I received a letter (159) from Manager Andrew Gorton, I received a severe reprimand and warned that any further instances whereby I submit documentation containing derogatory or unsuitable remarks may be treated more severely.
37. This was 2004, yet again, according to the investigation report, I regularly submitted reports with derogatory comments, why wasn`t I treated more severely? There was no action taken against me from 2004 to my dismissal in 2009.
38. Just how I felt about the ignorance is summed up in (160 & 161) this can be read out if necessary. This ends the year 2004. The hearing continues.
210. (MA 362) MA Again, all he can come up with is that I am, “completely off the mark”. How many more times?
211. (MA 364) MA states,“the fact that you sat there openly admitting you’ve done it before, which I am not aware of”.
212. (PW 365) PW I said, “It was my way of reporting faults”. It was my way of reporting those particular faults that morning, meaning hard hitting, strongly worded, the next paragraph explains this.
213. The point to be made here is the meaning of, “you’ve done it before”, firstly, I have never fabricated any reports before, If there was any report of a similar nature, don`t you think it would have been brought to my attention? I have however added scenario`s stating possibilities, in the context of this, what I have done before is how I behaved on that morning in question, that in not informing control and faxing the repair slip straight away because of my understanding of such a common fault and how the behavior of every other driver towards this responded. Previous reports and repair slips show this to be the case, therefore why wasn`t I or any other driver pulled up on this? But then with my reports and repair slips that TPE had in their possession, it is fairly obvious to conclude and evidence shows they were ignored.
214. (MA 366) MA asks an extremely relevant question, “what prevents this frustration from building up again and you doing it again”? No disrespect, but the answer to this question is the key to the reason we were in that hearing. It should have been so blatantly obvious to MA what the answer is. This is where I firmly believe that any manager taking this hearing with an open mind and based on the evidence they would have heard so far could have ended this hearing now and come up with a solution. Main question has to be, why did management let my frustration escalate this far? It could have been stopped by dialogue, consultation. Why did management always treat me as the enemy?
215. I even said, (PW 368 & 370) “That is why I want to put a stop to it now”, and “this is where a stop could be put to it”.
216. (ST 371). ST explains the very nature of the ATCU and how we want to take forward issues with any management, a very long passage but very relevant and a way forward.
217. (PW 372) PW In an extract from an ASLEF report about myself on why I gave up the health and safety rep post. ASLEF make reference in this letter to the irony of my charge (162) and state that (para 1), their conclusion, “that although they think he may have gone too far in his actions in order to make a point against TPE and that there is possibly a case for him to answer, he doesn’t deserve to have been charged with gross misconduct. We feel that Bro Webb needs defending from himself at times. He was a very active and determined safety rep on behalf of drivers here at York, initially with Arriva Trains Northern and then TPE when they took over the franchise. However, he ended up reigning some two years ago in frustration at not getting TPE to take up his many complaints and make improvements. Not that this stopped him putting in reports where he has continued to find shortfalls in TPE`s performance. The irony of brother Webb being charged with not following the correct procedure for reporting unit defects is that he is one of the most prolific reporters of such defects, and it was only the shortage of time and the mix up due to the change of sets for unrelated reasons that prevented him from doing this time. It beggars belief if TPE chose to charge every driver with gross misconduct every time they failed to report every defect or to do so in the correct manner. Most of us do, but there is an element who rely on the Bro Webb`s of this world (and other diligent drivers and union activists) to do the necessary work”.
218. ST 373). ST, Once again speaks with common sense on identifying issues and improving areas of concern. At the end of this paragraph he states, “Maybe over exuberance, maybe misguided but done with the very best intentions and done out of frustration by someone who`s not well and is taken in that light. I therefore look forward to your proposals as to a way forward”.
219. I ask MA (PW 374) if he would like to look through some of my evidence, which highlights some of my frustrations. MA never even glanced at it, he just ignored it.
220. Yet amazingly MA states (MA 375) “I can understand your frustration because clearly it`s there”. This is the same man that said what I did was with malicious intent.
221. (PW 376) PW In this passage I explain to MA that I have done this before and if management had warned me it wouldn`t have happened again. I tried to show him the exact reports which showed a scenario situation being used and also that I never informed control in the same situation. I then explain that I feel the warning horns do not match the expectation of the group standards, at low speed, high speed and with cold weather and that if this had been addressed I would never be in this position.
222. (MA 377) MA a senior manager now makes an astounding comment, he actually asks me, if it has been proven that the warning horns are not audible at that distance!
223. Let`s remember that I am in this hearing because despite years and numerous complaints about defective warning horns, always completely ignored, I try a different approach to highlight this problem. TPE freely admit they have been aware of this problem “Since Introduction”.MA is freely admitting he doesn`t know if these horns have been tested. (ST 379) asks that very question, “has it been investigated”. (PW 380) I explain with the amount of reports you would think it would have been investigated. I believe that TPE have only just started to investigate this problem now, 4 years after becoming aware and I believe that is only because of my involvement in highlighting this very serious life threatening problem.
224. (ST 381). ST Rightly points out that it took 3 weeks to level these charges against me and in that time I had many people say I was in trouble and would be sacked.
225. (PW 387). PW I point out that in recent control logs there are issues raised of train crew not reporting defects, (163 & 164), why wasn`t the same charges of “Gross Misconduct” levelled at them?
226. (PW 389). PW I point out that in the repair slips I had with me, there would be many that have not been rang in to control. Therefore not following the same so called procedure I apparently didn`t follow.
227. (MA 390). MA says, “But your actions have decided to go down the same line as the others”. If my actions went down the same line as others, why weren`t the others given the same charges? Why? Because it was me.
228. (PW 391). PW I explain that I try to do something about it to make it safer. I then mention my petition (165 to 165g) that was started and signed by a few drivers. It points out that they are as guilty as me, because not one of them that signed the petition apart from Driver Keith Walden and maybe one or two others would have reported anything.
229. (ST 392). ST sums up the events, but warns that if other failed to follow what TPE call the correct procedures for reporting defects then they must face the same charges, but we all know that will not happen, because the only issue on the mind of TPE was to get rid of Webb.
Hearing decision
230. (MA 393). MA points out that during their summing up of events, they as he put it, “had to move about”, I don`t find this acceptable with such an important decision to make, why couldn`t a room have been put aside specially for this hearing?
231. MA points out what he describes as a medical opinion which says there is no reason he can`t attend today. On reading the medical opinion (166) how could any person who is suffering from, “clear evidence of anxiety and depression”, who requires medication or counseling or possibly both in order to help me over these difficulties, be able to do themselves justice. I was at a distinct disadvantage.
232. Also MA said that he believes I had adequate notice to attend the medical and reckons I made a concerted decision not to bother, even though I had a contractual obligation to do so, even though I was clearly not in the right state of mind and as for the so called contractual obligation, I had absolutely no idea about this. Amazingly however MA reinstated my sick pay because the medical evidence showed the state of my welfare and the reason for being absent? I was not absent, I was covered by doctor`s notes and these doctors had come to the same conclusion about my medical condition as the BUPA doctor.
Continued in Part 2
219. I ask MA (PW 374) if he would like to look through some of my evidence, which highlights some of my frustrations. MA never even glanced at it, he just ignored it.
220. Yet amazingly MA states (MA 375) “I can understand your frustration because clearly it`s there”. This is the same man that said what I did was with malicious intent.
221. (PW 376) PW In this passage I explain to MA that I have done this before and if management had warned me it wouldn`t have happened again. I tried to show him the exact reports which showed a scenario situation being used and also that I never informed control in the same situation. I then explain that I feel the warning horns do not match the expectation of the group standards, at low speed, high speed and with cold weather and that if this had been addressed I would never be in this position.
222. (MA 377) MA a senior manager now makes an astounding comment, he actually asks me, if it has been proven that the warning horns are not audible at that distance!
223. Let`s remember that I am in this hearing because despite years and numerous complaints about defective warning horns, always completely ignored, I try a different approach to highlight this problem. TPE freely admit they have been aware of this problem “Since Introduction”.MA is freely admitting he doesn`t know if these horns have been tested. (ST 379) asks that very question, “has it been investigated”. (PW 380) I explain with the amount of reports you would think it would have been investigated. I believe that TPE have only just started to investigate this problem now, 4 years after becoming aware and I believe that is only because of my involvement in highlighting this very serious life threatening problem.
224. (ST 381). ST Rightly points out that it took 3 weeks to level these charges against me and in that time I had many people say I was in trouble and would be sacked.
225. (PW 387). PW I point out that in recent control logs there are issues raised of train crew not reporting defects, (163 & 164), why wasn`t the same charges of “Gross Misconduct” levelled at them?
226. (PW 389). PW I point out that in the repair slips I had with me, there would be many that have not been rang in to control. Therefore not following the same so called procedure I apparently didn`t follow.
227. (MA 390). MA says, “But your actions have decided to go down the same line as the others”. If my actions went down the same line as others, why weren`t the others given the same charges? Why? Because it was me.
228. (PW 391). PW I explain that I try to do something about it to make it safer. I then mention my petition (165 to 165g) that was started and signed by a few drivers. It points out that they are as guilty as me, because not one of them that signed the petition apart from Driver Keith Walden and maybe one or two others would have reported anything.
229. (ST 392). ST sums up the events, but warns that if other failed to follow what TPE call the correct procedures for reporting defects then they must face the same charges, but we all know that will not happen, because the only issue on the mind of TPE was to get rid of Webb.
Hearing decision
230. (MA 393). MA points out that during their summing up of events, they as he put it, “had to move about”, I don`t find this acceptable with such an important decision to make, why couldn`t a room have been put aside specially for this hearing?
231. MA points out what he describes as a medical opinion which says there is no reason he can`t attend today. On reading the medical opinion (166) how could any person who is suffering from, “clear evidence of anxiety and depression”, who requires medication or counseling or possibly both in order to help me over these difficulties, be able to do themselves justice. I was at a distinct disadvantage.
232. Also MA said that he believes I had adequate notice to attend the medical and reckons I made a concerted decision not to bother, even though I had a contractual obligation to do so, even though I was clearly not in the right state of mind and as for the so called contractual obligation, I had absolutely no idea about this. Amazingly however MA reinstated my sick pay because the medical evidence showed the state of my welfare and the reason for being absent? I was not absent, I was covered by doctor`s notes and these doctors had come to the same conclusion about my medical condition as the BUPA doctor.
Continued in Part 2