FAO FLOWERYBEANBAG OR ANYONE ELSE HOT ON EMPLOYMENT/DISCIPLINARY ACTION (long sorry)

[SilveryMoon]

I'm hoping someone can help me.
About 5 months ago, in June, dp was driving to work (he works for network rail), there is a level crossing that he has to go over each day, and on this particular morning he drove over it and there was a train coming. There isn't a barrier at this crossing, but there are lights and a horn.
Dp says the lights were not flashing and he did not hear the horns.
He went straight to the office to report the incident, believing there must be a fault with the crossing and signals.
He was called to a preliminary 2 months ago (so 3 months after event) and was asked a series of questions on what happened.
Now dp, clearly had a moment of stupidity because when asked if he was tired, he said no but possibly wasn't paying attention and admitted to having his radio on and driving a little faster than he should have been because he'd been held up in traffic earlier in his journey and was due to be late.
Now, there are also reports that we have that state from maintenance that there are sunlight issues at this site and on a bright day, they lights are not always visible, that some road signs are obstructed and that this has happened before and they are trying to get a barrier in place.
The disciplinary is on wednesday and I'm really worried that dp will lose his job.
His boss is unconcerned saying that if they were going to do anything, they'd have done it by now.
Anyone got any ideas on what is likely to happen?

Should add, this level crossing is in the yard at his depot, so not actually public access

I remember you posting about this before. Didn't know it had gone to a disciplinary. :(

No advice, sorry but good luck and bumping.

Thanks Rockbat Dp gotg the letter in the post yesterday.
Can't believe they are doing this after all this time

yes I remember this, this is ridiculous!
He could have been killed and they are making it out to be his fault!

Yeah, that's it. I feel so angry about it. You should see this report, they are basically emplying that dp would risk his life so he wouldn't be 10 mins late for work.
In the letter it says
"The above incidents constitutes gross misconduct and could lead to your dismissal"
I am so so worried about it.
if they did sack him, would he have a good case to appeal it?

On the morning it happened, it is stated that they asked him if he was ok to work or if he was feeling distressed that he had to go home.
He was fine to work and stayed there. maybe he should have come home and played on the "I could have been killed thing"

Surely the fact that he reported it straight away shows it was not intentional and that he actual felt there must have been a fault

The only thing I can suggest is that he stresses the mitigating circumstances.

For example, he should say that whilst he was driving faster than normal, he was still driving within the speed limit and whilst the radio was on, it wouldn't have distracted him.

In terms of the lights, he should argue that it is KNOWN that the lights aren't affective in bright conditions.

Also, he reported the incident straight away, following company procedure (people don't always report 'near misses', but it is important for H & S purposes so that accidents can be prevented).

Finally, he should say he's worked there for XXX amount of time with a previous good record etc.

Thanks chanie That is the plan.
he has his union on it too, and they have already been chasing up why it took 3 months for a preliminary meeting about it, so no doubt they will be all over the fact it's taken 5 months and if the company felt dp was a danger to himself or others, why was he able to remain on a signal maintenance team for so long since the event.

Will have a look later

Sorry, I was going to add some more, but DS started being grumpy.

As you rightly said, it has taken them 5 months and if your OH was such a liability, they should have suspended him.

From an employment point of view, health and safety legislation over-rides pretty much everything else - thats why they need to be seen to be taking it seriously.

Good luck!!

Thanks chanie That's why dp reported it straight away, because of H&S, he genuinely thought there must have been a fault there.
This whole thing is a complete nightmare, God knows how I'm gonna get through to wednesday.
Dp isn't outwardly showing his worry, I think that's because he doesn't want me really in a panic

Don't panic.

yes all the stuff about mitigating circumstances, following procedures, previous good record etc.

But it's the combination of the delay and the fact that he was not suspended which are key to helping him. The definition of gross misconduct is something that happens that is so serious it causes the employment relationship to fundamentally break down without hope of repair. Which is why you can dismiss straightaway for gross misconduct. However if you are going to argue that the act or acts have caused a fundamental breakdown in the employment relationship making it impossible for employment to continue, you can't then keep the person in work and faff about for 5 months.

In my view even if they could have dismissed for this offence at the time, if they'd suspended him immediately and done it in a timely manner, it would not now be reasonable to do so - they have demonstrated clearly that they don't feel it's impossible for him to work there after this event, as they have allowed him to do so for 5 months.

So yes he has good grounds for appeal should he be dismissed.

Thanks FloweryBeanBag That does make me feel better.
Dp now can't attend the meeting next week as his union rep is tied up all week.
Aparently one of the higher up bosses has told him today (off the record) that he will receive a written warning.

Written warning sounds about right, I'm sure they know they are not going to be able to dismiss him.

Written warnings can stay on file for up to 5 years, and can be communicated to prospective employers in references. So if your DP is looking for alternative employment that is something to keep in mind.

Thanks Bark He is very happy in his job and isn't thinking of looking for another one.
I thought written warnings were 1 year?

Written warnings do vary in length. I (HR!)always advise managers to go for either 1 or 2 years because they are about the employee improving his behaviour/ actions and 1-2 years is ample time to demonstrate an improvement. I don't think it's fair to have a warning hanging over someone's head for too long.

Oh, ok MrToad Thanks for that

He may be able to claim that he was a "whistle blower" and that he is being discriminated against for whistle blowing, and the disciplinary is illegal.

He could ask for the minutes of the health and Safety committee before and since the incident to be available at the hearing. The Union could request that the HSE send a representative to the hearing.

Lucinda Thanks for your input. How does all of that work? Sounds good............not sure dp's got the nuts to do that though (I would!) If you have time, could you talk me through what he'd actually have to do for your plan?
I know (I think) what a whistle blower is, but what would he have blown the whistle on? and would this affect his future career with this company?
Dp loves his job, I know he doesn't want to leave his job, he has a good team working with him, he has a fab team leader (who, for the record I think is a prick), who he has a good givea take relationship with (for example, dp will pick up his TL from his house during the day in order that the TL have half a day off un-reported, and TL does the same in return).
But I know dp will count himself lucky to get 'just' a written warning (where as I'd be livid)

On the day of the Level crossing near miss when your dp reported the incident, was a written record of his report made?

Was an investigation made at that time into the efficacy of the flashing lights and the audible warning horn?

There are two main points. A) the health & safety risks of that crossing; B) the alleged inattention of your DP.

However, In one sense your DP "grassed himself up" because he thought the H&S risks outweighed his own possible inattention.

He is being penalised for his own honesty?

The question is: Did the company take seriously and do something about the warning lights at the crossing?

Reporting an incident doesn't count as 'whistleblowing'. If he wanted to whistleblow about something there is a specific way of doing it here. I would imagine his employer has a whistleblowing policy which he presumably hasn't followed.

If someone whistleblows they can then take their employer to a tribunal if they are dismissed or suffer a detriment (warning) as a result. But to get protection you have to do it right; you can't suddenly decide when you get a warning for something that you were in fact whistleblowing.

He can certainly appeal his warning when he gets it on the grounds of everything we mentioned above - previous good record, all the mitigating circumstances, plus delay in acting.

Thanks for advice all.
Tbh, I don't think dp would be up for 'whistleblowing' regardless.
We're keeping our fingers crossed and will see what happens.