"If any company can get away with putting the safety of its workforce at risk, then it will quite happily continue doing so."|
Some people might think that, with the numerous health and safety laws and regulations published since 1974, any workforce would be calling the shots when faced with a safety problem. Health and safety reps should have considerable clout when you look at their legal rights. Unfortunately it does not go as far as the right to stop the job. However, it can be argued that Section 7 of the 1974 Health and Safety at Work Act has always given the right to refuse work if it poses a safety threat ("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;.......").
All this theory is wonderful. These regulations are forever discussed at TUC Safety Reps' training courses. But the reality is that some companies just ignore them. They pretend they don't exist. My ex-employer, Connex South Eastern, is one such company. And if any company can get away with putting the safety of its workforce at risk, then it will quite happily continue doing so.
Connex SE took over from an organization that already had a reputation for being aggressive and often hostile towards its employees, particularly those who wanted improvements and were prepared to do something about it. Connex SE seemed quite happy to take on this environment of aggressive industrial relations.
I had been a safety rep for 7 years, which is longer than any of the other drivers' safety reps in the London area. I mention this because there was a high turnover of reps. Many took on the job because they were genuinely keen on the issues involved and wanted to do their best in making improvements. But the average tenure was 15-18 months. They felt they were banging their heads against a brick wall. Connex SE is a very dogmatic, unyielding organization. It will not listen to reason and seems to resent any criticisms. The fact that so many people gave up as reps is obviously a great waste of both talent and enthusiasm. Some reps just 'kept their heads down,' went through the motions, carried out their inspection tours, and really didn't want to 'make waves.' But others wouldn't allow Connex SE to get away with its violations of health and safety regulations, its negligence and its contempt for the safety of both its workers and passengers.
The type of issues I tried to resolve ranged from local items such as replacing messroom chairs that had become unsafe, to larger issues such as the rapid increase in SPADs (Signals Passed at Danger) that took place after the introduction of the Connex Drivers' Restructuring agreement.
A list of some of the problems we faced -
flooding in the Dartford Up Sidings where the walkways, which are next to the 650 volt electric third rail, became dangerously slippery;
the refusal by Connex to make safe the area next to a signal post telephone at Slade Green. This negligence resulted in 3 drivers later being injured;
the refusal by Connex SE to respond to complaints that Sevenoaks Tunnel had water pouring through the lining for about 9 months (it eventually collapsed in 2 places injuring 4 passengers and one driver). The only action the local manager took was to doctor the minutes of a meeting by omitting any reference to my complaint and refusing to answer letters about this omission. This manager has since been promoted;
the refusal by Connex SE to produce a Smoking Policy at Work;
the refusal by Connex SE to deal initially with the excessive heat problem caused by solar gain in the driving cabs of 465/6 units which were like greenhouses on wheels;
the refusal to deal seriously with one of the worst consequences of the disastrous policies of DOO P (Driver Only Passenger trains) attacks and assaults on drivers.
the Drivers' Restructuring agreement which took our conditions of service back many years.
This list could go on and on. The most serious problem must be the Drivers' Restructuring agreement which was introduced in June '97. This probably took our conditions of service back at least 30 years. Turns of duty were up to 11 hours (though in reality this could be 11½ hours with the addition of unpaid duties we had to carry out after booking off). The maximum number of hours any driver worked in one week was 77 hours, though at my depot it was 70½ hours. Drivers couldn't cope with these hours, with cases of drivers booking off duty due to fatigue, an increase in safety related incidents, and sadly a huge increase in SPADs (36 in 96/7 to 49 in 97/8) the opposite to the national downward trend.
Connex SE management refused to let Safety Reps see the risk assessment that should have been carried out prior to Drivers' Restructuring. Connex SE appeared to be in breach of the Safety Critical Regulations but we could not be sure as we were not allowed to see any documentation. Any of the consequences of Restructuring was difficult to investigate because of the general lack of information given by Connex SE. For example, it was never easy to find out the real causes of SPADs as we were not allowed to investigate any of them. In fact it was by accident that I found out that there was a Connex SPAD Group. I was able to find a total of one set of minutes of this group. Safety Reps were certainly never allowed anywhere near this secret organization. This attitude is the complete opposite to that taken by the Railway Inspectorate. Her Majesty's Chief Inspecting Officer Of Railways Vic Coleman wrote to me: "You will be aware that Regulation 4 of the Safety Representatives Committee's Regulations 1977 provide for safety representatives to have a number of functions these include the function "to investigate potential hazards and dangerous occurrences at the workplace
and to examine the causes of accidents at the workplace." This clearly applies with respect to incidents such as SPADs."
I had always been careful to send all safety issues through the Connex Health and Safety Procedures, that is, after being unable to resolve them locally, I would send them up to the company level. It may be no surprise to anyone that rarely did this make any difference. I cannot think of any other drivers' safety rep going through the Procedures. It was like seeing something disappearing into a giant black hole. Connex SE has produced all sorts of Procedures its Grievance Procedures, its Harassment Procedures, its Health and Safety Procedures. But these are a sham, only ever used on the employer's terms.
Those of us who recognized that our health and safety conditions were rapidly deteriorating would use whatever method we thought would give us a chance of clawing anything back - or even winning a few victories. This might involve bringing in the Railway Inspectorate. Or refusing to use unsafe walkways. Refusing to take lunch breaks in smoke filled messrooms. Refusing to use 465/6 driving cabs when they became unbearably hot. Or refusing to take trains with safety faults into passenger service.
With the solar gain problem in cabs, it was only when I brought in the Railway Inspectorate that we saw any change. The local Railway Inspector threatened Connex SE with an Improvement Notice. This was, unfortunately, never implemented, but it resulted in a commitment to fit air conditioning units in all cabs. Unfortunately a commitment from Connex SE doesn't mean very much so it took another 3-4 years before all cabs were fitted.
The response from Connex to anyone who was critical of the deteriorating safety conditions and to anyone who tried to do anything about it was to shut them up, or hound them out or even to sack them. Since Connex SE took over the franchise, more than 50% of the drivers in the London area have left for other companies. Of those that I've spoken with, everyone has taken a cut in wages and has had further to travel. The same reasons are given the deterioration in conditions and the bullying style of management.
"Alarm bells started ringing after the Ladbroke Grove tragedy"
My last 2½ years with Connex ended up with a campaign of hostility towards me from Connex. The final straw was the response I received from Connex SE after I wrote a report to the Railway Inspectorate. I had been putting together a list of issues that we had been getting worried about locally. These included: the 44% reduction in practical training given to new recruits; the pressure put on new drivers to 'sign up' whilst 'road learning;' the excessive hours worked; the SPADs and other safety incidents caused by fatigue; safety reports doctored by management; and the continuing intimidation by managers. The final point was my criticism of the Railway Inspectorate's attitude of 'wait and see' (a direct quote from the local Rail Inspector - Mr Johnson) towards the deterioration within Connex SE. As I was finalising my report, the Ladbroke Grove disaster occurred. This involved a train from Thames Trains going through a red light. Alarm bells started ringing after the Ladbroke Grove tragedy. From the initial information given out, it was clear that there were so many similarities between Thames Trains and Connex SE, particularly the inadequacies in training. Also there were ex-Connex SE managers at all levels within Thames Trains. I sent my report to the Railway Inspectorate just 5 days after the incident at Ladbroke Grove. It caused a large amount of interest, and was widely copied throughout Connex and outside. I was harshly disciplined for writing this report and was 'awarded' a severe reprimand and a final warning. It was made clear that any further reports to the Railway Inspectorate may lead to my dismissal. It had become impossible to operate under these conditions.
In fact I had previously been threatened with discipline after writing reports to both the Locomotive Journal (ASLEF's magazine for its members) and to the Railway Inspectorate. It became a standing joke with colleagues that I had lost count of the number of Final Warnings that I had been issued with. Although of course it wasn't funny at all. An interview I had at London Bridge probably gives a good idea of the seriousness of this. A local DSM (Drivers' Standards Manager) administered 2 Final Warnings one for writing to the Railway Inspectorate and one for being absent when my car broke down on the way to work. I had never been disciplined for absence before. (At the ensuing industrial tribunal it was shown that I was the only person that had ever been disciplined for such an incident. Anybody else would be given the option of taking an annual leave day.) The DSM then told me that I was to stay on a Managing For Attendance (sickness monitoring) Final Warning for another 6 months. This would mean a period of 20 months with no more than 1½ days' sickness, or I would be sacked! Just as I was leaving the interview I was handed another disciplinary charge which alleged that I was responsible for a late departure of a train. This actually had nothing to do with me but was due to a delay in the formation of the train in the depot. Connex SE seemed to use everything it could muster against me even threatening to use the Harassment Procedures against me!
I believe that all that was required by Connex was for me to be caught out by a minor incident in which case they would dismiss me and deny that my involvement with health and safety issues played any part. Added to the fact that more than 2 years of harassment had effected my health considerably, I decided it was time to get out. I decided to use the only weapon left available the law.
Using the law
The legal fight against Connex SE turned out to be a complex and protracted battle, with in total 14 days in court, about 2800 pages of documents, taking almost 3 years to be resolved. During the hearing all the issues were dealt with in detail. It became clear that Connex managers would have some major problems whilst giving evidence. In their normal day-to-day dealings at Connex they could get away with anything. Considerations such as honesty and truth wouldn't normally bother them. But at a tribunal, a witness swears to tell the truth. The Connex managers were caught out time and time again. At one point the Tribunal Chair interrupted an assistant area operations manager: "Are you making this up as you're going along." Another time he said: "I must remind you that you swore on the bible." The Connex SE testimonies were rife with inconsistencies.
Connex SE produced at the Tribunal the Drivers' Restructuring risk assessment (after 5 years of asking) along with the SPAD report that I claim had been doctored. The Tribunal was amazed that this was the first time I had been allowed to see these documents.
3 months after the main testimonies were given, the tribunal Chair gave a brief summing up of the tribunal's Decision. I had been unfairly (constructively) dismissed because of my role as a Health and Safety Rep and my sending 2 reports to HMRI (thus breaking the Public Interest Disclosure Act the PIDA). The chair said: "Connex South Eastern was less concerned about the safety of its staff and passengers than in its public image and cost savings." Also "at the disciplinary hearing involving Mr Holden's report to the Railway Inspectorate, it was found that there had been no proper inquiry, no proper findings, and that the hearing was used to shut him up."
It was another 2 months before the full written 37 page Decision was published. Connex SE came in for some strong criticism from the Tribunal. Connex SE did nothing to make sure "unsafe practices or situations" were "made safe," paying mere "lip service" to health and safety concerns and that it "did nothing to ensure that concerns raised were thoroughly investigated and addressed and unsafe practices or situations made safe." Connex SE lacked any "sense of urgency or sense of realism" in tackling health and safety issues. The company carried out "a sustained campaign" of "victimization" against me as a Health & Safety Representative, unfairly constructively dismissing me in breach of employment laws.
One major issue the judgement deals with is the question of excessive drivers' hours and fatigue, with about 17 paragraphs devoted to this one crucial subject. It accepted the dilemma that drivers faced, i.e. "Drivers were not prepared to raise the question of fatigue with their managers and were extremely reluctant to go absent from work notwithstanding their fatigue as had they have done so their absence would have triggered the attendance procedure which then could have led to their dismissal." "The result being that drivers tried to cope with their own tiredness and as a consequence their stress levels actually increased."
At the next tribunal meeting to consider the award the Tribunal Chair again had harsh words to say about Connex SE whose conduct was "wholly unacceptable." He stated that Connex SE had "fought to the bitter end" despite the tribunal announcement against the company 3 months' previously. He stressed that Connex SE had at no time made an apology to me. In fact journalists, in trying to get any sense out of Connex SE managers, were amazed to hear that as far as Connex was concerned the company hadn't made any mistakes and that the tribunal was wrong!
This case was well publicized in the TV, radio, newspapers, magazines and throughout the internet. It had actually made legal history. This was the first time that a railway company had been found in breach of the PIDA. This was also the first time that "aggravated damages" and "injury to feelings" had been awarded in an unfair dismissal case.
At last, everything that had been said in messrooms over the years was made official Connex SE breaks both employment and safety laws; safety is not a priority for Connex; and anyone who tries to challenge the Connex policy of paying "lip service" to health and safety can be victimized and hounded out, misusing its own procedures.
"The best weapon we can ever have is strong workplace organization"
So was this a resounding victory? I had won everything I had aimed for legally. But the fact that I had to go outside the railway industry to gain justice shows that this was not a success. All too often, workers fighting for improvements are isolated and hounded out or dismissed. After all the publicity dies down, the employer gets back to its old ways of getting things done on the cheap, shutting up anyone who gets in its way. That's certainly the case with Connex SE. Anyone fighting for improvements finds a relentless, inflexible bully. Unfair dismissal cases against Connex SE are still going ahead.
Some people believe that to make an employer take health and safety seriously we should have a regulatory body with tough enforcement powers. That would certainly help, but ultimately the best weapon we can ever have is strong workplace organization. If we can build an organization that is so united, has so much clout, that if one of its members get picked on, the response will be such that the employer won't know what's hit him. It's easy making this point the hard work is obviously achieving it. I was a regular branch attender and always encouraged members to come to meetings, and get both involved and organized. I obviously wasn't very successful. If one person is allowed to be picked off, this weakens the power of the whole workforce. Unity and power (and some political ingenuity) can stem the tide of setbacks suffered over the last few years.
So where was my union in all of this? Unfortunately, it was elements in the ASLEF leadership that became part of the problem. Just a few weeks before the Tribunal was due to start I received 7 Connex witness statements. They were not all from managers. 2 were from ASLEF officials. They both described how safety is a priority of Connex SE; how efficiently the Health and Safety Procedures work; how Drivers' Restructuring was in the very best interests of drivers and that long hours and fatigue had never been a problem. The first official to be questioned was a Connex SE Joint Safety Council member and the secretary of the reps at company level. To see a union official trying to justify the actions of Connex was quite sickening. Perhaps he had become used to getting an easy ride with Connex, but at the Tribunal the questioning of his motives and actions was relentless. He was presented with numerous newspaper articles making the link between long hours, fatigue and accidents. He apparently hadn't seen any of them. Although he had seen the results of the Railway Inspectorate survey that showed Connex SE drivers had suffered fatigue due to long hours. "What did you do about it?" "Nothing" was the answer. He was reminded of reports addressed to him from drivers complaining of excessive hours. "What did you do about it?" Again, "nothing." When a member of the Tribunal panel has to patiently explain to a union official who sits on the Joint Safety Council how the 1974 Health and Safety at Work Act operates, you tend to suspect that this union has lost its way. The Tribunal became very clear about this witness. The Tribunal statement describes him as a "company man" who became part of the Connex SE campaign against a Health and Safety Rep, and who was "disingenuous before the Tribunal" in his denial that long hours and fatigue were problems. He was rebuked very strongly for his failure to oppose victimization. There are 24 references to this official in the judgement. I don't know of any tribunal judgement where a union official is castigated so strongly.
The other ASLEF official, recently retired, had been at the tribunal for 3 days and was due to give his testimony on behalf of Connex SE the next day. After seeing his colleague fully revealed as a 'company man,' this person never turned up. We didn't see him at the tribunal again. I wonder why?!
So, our struggle was a complex and difficult one. We were a group of workers who were up against not only a tough, hard-nosed company, part of a multi-national conglomerate, but we were also up against a group of union officials more at home with hopping into bed with the employer (metaphorically speaking!).
The news that Connex has been chucked out of the South Eastern franchise is tremendous. At last it has got its come-uppance! The problem is that the Connex 'blame culture' is deeply entrenched, especially so amongst the middle ranking managers who will probably stay. No one can assume that either the SRA management or the new incoming company will be any better than Connex. The workforce will no doubt have to be particularly vigilant.
I think the argument for strong workplace organization becomes imperative to take action against employers who pay scant regard to the safety interests of its workforce; and to make sure that workers are fully in charge of their unions so as to make them fighting organizations. Only when we can get to grips with the 2 sides to this problem can we start winning the victories required to take us into the 21st century.
More information about the Holden verses Connex South Eastern industrial tribunal can be found at the http://csenews.net/ website.
Secretary of the RMT TrainCrew and Shunters Conference
The great train robbery
London Hazards Centre.
RMT Train Drivers' Health and Safety Representative, Waterloo Depot - 1997 to 2000.
A fighting organisation
ASLEF Train Drivers' Health and Safety Representative at Charing Cross Depot - 1992 to 2000.
RMT Council of Executives, 2001-2003.
Glossary of Abbreviations
London Hazards Centre
Greater Manchester Hazards Centre
The Daily Hazard