RMT announced the result of their ballot yesterday, 299
voted for strike action, 221 voted against and there was one spoilt paper, hardly the overwhelming support they were hoping for. I read somewhere that this was a 42% turnout
which gives RMT about 1240 TOps on their books, rather more than had been
suggested at the end of last year. If Boris
were around perhaps he’d point out that only 24% of RMT members support strike
action but it appears that he’s given up any attempt of pretending to be
Mayor and is currently on some sort of world tour trying to promote himself as future Prime
Ministerial material.
There has been the predictable press outrage with the usual
shoddy journalism, several inaccurately report that AMcG was driving a train
while drunk or that he failed two tests on two separate dates. Management are sticking to their version of the
story, declaring that RMT are asking its members to “defend the indefensible”
but still haven’t given a reason why they have rejected RMT’s offer to call
of the strike if they agree to abide by the Employment Tribunals decision and
give AMcG his job back if it is decided that he has been unfairly sacked.
Until they can offer up an explanation for refusing this
option we are left with two possibilities; either they know that AMcG was unfairly
dismissed and that they will lose at the Tribunal or they simply don’t care if there’s a strike, possibly they even
welcome one.
Interesting stuff, having just heard Steve Hedley's meltdown on LBC via Guido Fawkes and was looking for more detail on the case. (BTW, doesn't SH need to be a little careful about alluding to wife-beating?). Anyway, my point is this: the RMT's offer is overly simplistic and probably just a little disingenuous. An ET can uphold a claim for unfair dismissal even if the cause of the dismissal was in fact fair i.e. even if the driver was drunk, or at least failed the stringent breath test (and at this stage we just don't know the facts), and hence is arguably a danger to the public, a failure in the disciplinary process could make the act of dismissal unfair. LU will naturally be most unwilling to promise to give him his job back even if there is an unfair dismissal finding, and will instead be waiting to see if there is a reinstatement order made by the Tribunal. I very much doubt the Tribunal would do so if they had good reason to suspect (or indeed actually find) that the driver was in fact drunk/failed the breath test, and so damages would be the driver's only remedy, and even then these would be de minimis because of his conduct.
ReplyDeleteI'm the 3 FEB anonymous ranter - apologies for challenging wills to live again. While a Tribunal may decide in favour of 'reinstatement', no legal obligation exists for the former employer to do that.
DeleteThere are two types of reinstatement - the first is to return to the post previously held, the second is 're-engagement', to be taken back as an employee, but in a different role at another location, or the same role at another location where the work will not come into contact with previous colleagues / managers. The loophole is that the former employer is not bound to accept this, and it becomes the basis of a 'full and final' financial settlement, with or without skills training etc to enable the former employee to find different work elsewhere.
Most employers argue, again not letting facts spoils their case, that the 'relationship has irretrievably broken down' and taking the former employee back is not in anyone's interest. Our industrial law is on paper bloody magnificent, but in reality it has less value than a used tissue - you decide which end it's been applied to.
An interesting case and one that is repeated in industry throughout the country. Both ACAS and CAB affirm that a 'trumped up' alcohol abuse allegation is a common ploy used by employers to get rid of troublesome employees.
DeleteThis said, there is plenty of case law to claim for unfair dismissal. Just to give a few examples. Vauxhall Motors v Ghafoor (1993) suggests that a failure of the disciplinary hearing to keep proper notes may amount to a procedural defect and, in serious cases, render the dismissal as unfair. Carmelli Bakeries v Benali (2013) suggests that the employer is required to undertake a reasonable and impartial investigation into a dismissal even if the employee admits the offence. A failure to do opens the way for a tribunal to consider that there might be other reasons for the dismissal.
With regard to the reliability of breath tests, there is plenty of evidence from research into the use of breathalysers to suggest that they are not always reliable. Despite the claims made by manufacturers, whilst it is true that fuel cell type
ones can distinguish between acetone and alcohol, it is not necessarily true that they can recognise different types of alcohol. The alcohol in drink is ethanol. However, in some circumstances the body can produce isopropanol. Unfortunately, the breathalyser cannot differentiate between the two and so record a false reading.
If he failed because of the diabetes, how come he hadn't failed a test before?!
ReplyDeleteMaybe he'd never been tested before? I'd been working for LUL over 15 years before I had my first random test (apart from the test that everyone gets when applying for the job).
DeleteIF diabeic, then he probably should not be driving, anyway ...
ReplyDeleteWhich is why TfL/LUL are being awkward (apart form any other reasons)...
He would have to be re-employed in other work.
So, it looks ( & I emphasise looks) as they are trying to simply sack him & cheat him out of his pension, just to "save themseleves trouble"
One thing is certain, "management's" pronouncements are distinctly dodgy over this one, given the union's willingness to go to independant arbitration.
Doesn't it depend on which diabetes someone has? I always thought you can be a driver with certain diabetes?
ReplyDelete"LU reinstate driver who failed Alcohol Test", somehow I can't see anyone wanting to read that headline. LU have a responsibility to keep the traveling public safe. AMcG got caught out, he knew the rules and the system caught up with him. No one likes to see someone fired, but while the public will back unions over ticket offices, they won't back someone who was intoxicated. The unions need to pick their battles, this isn't one of them. A tube train carries more people than a plane...I'm pretty sure we all want our pilots to be stone cold sober! If you want a career where you can drink and go into work, being in charge of a moving vehicle isn't for you.
ReplyDeletePlenty of Tube staff have lost their jobs for failing D&A tests but the public never hear about it, this is a very rare case where the union think there has been a mistake.
DeleteThe first response is spot on.
ReplyDeleteA Mc G provided a breath sample, on the basis of this breath sample he was dismissed.
It appears as if LUL or its testing contractor failed to follow the correct process (disposed of the second sample) and so a tribunal might well decide that the dismissal was unfair.
Management has behaved appallingly, particularly the bulletins from Mr Holness "Three quarters of professional RMT train operators reject ballot"..." my thanks to the 76% of RMT train operators who have rejected this action by voting no, or withholding their vote" hang on, that sounds awfully like Boris..
Well just remember BoJo, only 18% of the electorate gave you their vote last time, 20% voted, but not for you, and a whopping 62% rejected your election by withholding their vote.
It appears as if LUL process may have been breached and based on this a legitimate ballot has been called which mandates strike action.