Tube strike threat over sacked driver

[sawb]

www.dailymail.co.uk/news/article-2947928/Tube-drivers-set-strike-action-colleague-sacked-failing-two-alcohol-breath-tests.html

I am not going to go into the nitty gritty of what has or hasn't happened. I just have one question. If the strike goes ahead, will it be a Northern line only strike or system wide?

[class411]

Just look at the comments.

Particularly the one where it states that there were not, in fact, two incidents, but two tests a few minutes apart. Down-voted 30 times.

Certainly reinforces my opinion of the sort of 'person' who reads the daily wail.

They haven't the slightest interest in a fair and accurate result - only in bashing the driver and the unions.

[Tubeboy]

System wide strike. The local strike which affected just the Northern was a little while ago.

[crusty54]

Test repeated to confirm the first wasn't an error.

[rheostar]

From what I've seen, the driver admitted having had a drink at some point before coming to work.

The diabetes problem was only raised after the event to try and get the results overturned.

As LU employees, we all know what the D&A rules are and we're under no illusion of the consequences resulting from failing a test.

[class411]

Feb 12, 2015 21:16:57 GMT crusty54 said:

Test repeated to confirm the first wasn't an error.

Yeah, because using the same hand held meter is the really intelligent way to make sure that it's working properly and obviously a satisfactory way to carry on when it's someone's livelihood at stake.

[class411]

Feb 13, 2015 8:40:45 GMT rheostar said:

From what I've seen, the driver admitted having had a drink at some point before coming to work.

Well, unless he had been a lifelong tea-totaller, obviously he had a drink before going to work. According to the wail he admitted to having a glass of wine the previous evening.

The diabetes problem was only raised after the event to try and get the results overturned.

I'm staggered by this comment.

What difference does it make when it was 'raised'?

Unless he actually became diabetic after the incident, timing is irrelevant.

As LU employees, we all know what the D&A rules are and we're under no illusion of the consequences resulting from failing a test.

Obviously LU should sack any staff that are drunk at work, but they should have the correct, fair, and accurate system for making a determination of when someone has above the permitted alcohol level in their blood.

Two tests with a hand held meter just won't cut it.

Presumably the reason LU won't accept the result of an employment tribunal is that they know perfectly well that their case would be 'laughed out of court'.

[castlebar]

@ class 411

So what do you propose as an alternative?

The unanswered questions of Moorgate ensure that there must be some system in place. And in the event of an accident, there could be more than just one person's livelihood involved. So what is your idea for an acceptable alternative please??

[class411]

Feb 13, 2015 9:16:06 GMT castlebar said:

@ class 411

So what do you propose as an alternative?

The unanswered questions of Moorgate ensure that there must be some system in place. And in the event of an accident, there could be more than just one person's livelihood involved. So what is your idea for an acceptable alternative please??

It's not rocket science: Any procedure that would satisfy a court of law.

This is something of fundamental importance and it's absolutely unacceptable that LU are not following suitable procedures.

If they are too lax there are endangering their staff and passengers.

If they are too 'gung-ho' they are putting at risk the livelihood of innocent staff.

It is simply unacceptable that LU are putting people at risk because they do not have proper, professional, procedures for measuring staff's alcohol level.

[castlebar]

@ 411

So, your inference is either that the current procedure would not satisfy a court of law?

ARE you saying the current "procedure" followed in this case is thus illegal?

If so, why have the Unions allowed this situation to happen,
until this specific case brought a procedure to light that would not satisfy a court of law, to occur??

Please clarify

[norbitonflyer]

Feb 13, 2015 10:12:03 GMT castlebar said:

So, your inference is either that the current procedure would not satisfy a court of law?

ARE you saying the current "procedure" followed in this case is thus illegal?

There is an established procedure. It is the Union's case that this procedure was not followed in this case. The facts should be established at an industrial tribunal - that is what they are for.

AIUI, LU have sacked this man on grounds which are disputed, and are denying him the right to have that decision challenged. No one, not even London Underground, are above the law. King John learned that the hard way 800 years ago

Put yourself in the position that the driver is in (or says he is in). You turn up for work as normal one morning. A random check comes up with circumstantial evidence that you have committed a sacking offence. (Dodgy material found on your computer, stealing company property, whatever) You are sure that you have done no such thing - maybe your computer has been hacked, or it's mistaken identity, or someone has framed you. Would you just accept that you've lost your job and go home?

[castlebar]

Thanks norbiton

I am trying to establish whether LU followed a legal or an illegal procedure. That's the question.

IF it was a legal procedure, LU are obviously in the wrong.

But IF they conducted the breath test via correct procedures and thus got a "positive", then I cannot see the issue, and the consequences are clear.

So was the breath test properly conducted via agreed procedures or not? An answer, rather than opinions please. (And it should be a simple "Yes" or "No" answer)

[class411]

Feb 13, 2015 10:12:03 GMT castlebar said:

@ 411

So, your inference is either that the current procedure would not satisfy a court of law?

Either that or what?

ARE you saying the current "procedure" followed in this case is thus illegal?

That isn't how the law works. It's not illegal to follow a procedure that does not produce a legally acceptable result.

For LU's sacking of the driver to survive an employment tribunal they must have followed a procedure that would be legally acceptable to whomever adjudicates the case.

If so, why have the Unions allowed this situation to happen,
until this specific case brought a procedure to light that would not satisfy a court of law, to occur??

That is almost certainly the case.

I presume that drivers turning up for work is a very rare occurrence so it's not likely to be something that happens often.

It may be that it has been used before with a positive result but the staff member concerned knew they were over the limit and did not make a challenge.

[Rich32]

castlebar That is the crux of the matter. LU claim it was and the Union argues that there discrepancies in the execution of the test.

[class411]

Feb 13, 2015 10:22:15 GMT castlebar said:

An answer, rather than opinions please. (And it should be a simple "Yes" or "No" answer)

You may have to wait a long time for that.

Unless this case (or a similar one) comes to some form of court or tribunal we will never know if the procedure is acceptable to a court.

[Colin]

The point everyone seems to have missed is that the LU policy on drink is zero tolerance.

There isn't an acceptable level, its nothing at all in your system when you book on.

Surely it doesn't matter what device is used, or how the procedure is conducted - its done by outside company BTW! - the fact remains that alcohol was found in his system and thats that. Like I say, the "limit" is zero, so any alcohol registered is a failure to comply.

[suncloud]

It is a serious matter for an employee to be dismissed and to lose their income and reputation. It is important that fair policies and procedures are in place and are followed correctly. These protect the employer and employee.
I am not in a position to comment on the detail of this case, but if LU has breached it's policy / procedures, or those policies/procedures are not appropriate, then regardless of the 'guilt' of the driver it would be appropriate for the unions to challenge that situation.

[class411]

Feb 13, 2015 11:20:33 GMT Colin said:

The point everyone seems to have missed is that the LU policy on drink is zero tolerance.

There isn't an acceptable level, its nothing at all in your system when you book on.

Surely it doesn't matter what device is used, or how the procedure is conducted - its done by outside company BTW! - the fact remains that alcohol was found in his system and thats that. Like I say, the "limit" is zero, so any alcohol registered is a failure to comply.

I wouldn't want to argue with someone who is very clearly far better qualified to know the rules and regulations, but I have to ask if you are certain that you have interpreted that correctly.

I ask for two reasons:

1) All humans produce alcohol, every day, through natural fermentation of stomach contents. It's a very small amount, true, but a sufficiently sensitive test can pick it up, so a corollary for requiring a zero alcohol level would be that LU could not employ humans to drive trains.

2) If it were that clear cut, why would the union be fighting the case? Surely they would not want to appear to be in any way condoning flouting established safety rules?


To be 100% clear, there are two possible 'zeros' here:

a) A zero tolerance of anyone found to have more than a certain level of alcohol in their blood.
b) An acceptable level of zero alcohol.

The two are, of course, very different.

[rincew1nd]

Feb 13, 2015 11:48:15 GMT suncloud said:

...[if] those policies/procedures are not appropriate, then regardless of the 'guilt' of the driver it would be appropriate for the unions to challenge that situation.

If the procedure was not appropriate I would like to think that the unions would have challenged it at introduction!

[suncloud]

Feb 13, 2015 11:57:56 GMT rincew1nd said:

Feb 13, 2015 11:48:15 GMT suncloud said:

...[if] those policies/procedures are not appropriate, then regardless of the 'guilt' of the driver it would be appropriate for the unions to challenge that situation.

If the procedure was not appropriate I would like to think that the unions would have challenged it at introduction!

Of course... I strongly doubt TfL as a large employer would fail to have a clear, fair and appropriate policy in place for such a critical matter... And Colin's post indicates he's in little doubt of the expectations.

[Colin]

Feb 13, 2015 11:55:40 GMT class411 said:

I have to ask if you are certain that you have interpreted that correctly.

I am 100% certain that I have "interpreted" my employers policy correctly - it is zero when booking on.

LU uses an outside company to conduct its tests on its behalf. I'm quite certain this is not a mickey mouse company and I'm therefore happy that they are able to conduct a bona fide test.

RMT's case is based entirely on the point that the test does not account for Diabetes. Whilst I'm not qualified to have an opinion on this point, I'd like to think that the third party company conducting the tests are aware of the possibilities regarding potential false positives. LU also has its own very good internal occupational health department that can advise on such matters.

Frankly I'm glad I'm not in the RMT - Steve Hedley's performance on LBC the other day did nothing to help the situation. His explanation of RMT's issue was to attack Nick Ferrari with claims of wife beating. Most bizzare.

[class411]

Feb 13, 2015 11:57:56 GMT rincew1nd said:

Feb 13, 2015 11:48:15 GMT suncloud said:

...[if] those policies/procedures are not appropriate, then regardless of the 'guilt' of the driver it would be appropriate for the unions to challenge that situation.

If the procedure was not appropriate I would like to think that the unions would have challenged it at introduction!

That isn't generally the way things work.

When a rule or law is changed it usually needs a 'test case' to check that it is in line with all other relevant legislation.


What would you have had the unions do? Call a strike over something that had not actually happened? That would have had the daily wail readers wetting themselves in sef righteous indignation.


The widespread, but nevertheless fanciful, idea that just because a company is very large, it can impose any rules it wants is something of a myth. One thing that has been brought up in this case is diabetes. If a company disregards this illness, then it is in breach of disability legislation and cruising for a bruising in the courts. That does not mean, of course, that diabetics are allowed to perform safety critical work whilst drunk. Merely that whatever procedures are in place must take account of any special circumstances that the disease my bring about. It doesn't matter one jot if the procedure has been 'agreed' - what matters is whether a court decides it is reasonable and in line with relevant legislation.

[class411]

Feb 13, 2015 13:19:02 GMT Colin said:

Feb 13, 2015 11:55:40 GMT class411 said:

I have to ask if you are certain that you have interpreted that correctly.

I am 100% certain that I have "interpreted" my employers policy correctly - it is zero when booking on.

So how do you account for the known scientific fact that all humans produce alcohol as part of the digestive process and that alcohol has to enter the blood stream to be metabolised?

As such you cannot have all of:

1) Humans driving trains
2) Fully accurate alcohol detection
3) A policy of absolute zero blood alcohol

It is simply not logically possible for all three to be simultaneously true.

This may seem to be unnecessarily pedantic but it has relevance, because in means that in practice you must allow a small level of alcohol, or no one would ever pass a test. And it is how that small level is calculate and measured that is the crux of the current situation.

[castlebar]

I'm clearer on this now. Thanks to all.

My understanding is thus:

1)There is a "No alcohol if the bloodstream" policy when staff are signing on

2)Somebody signed on for work to drive a train, and was tested for alcohol in the bloodstream. He was re-tested and the same result was obtained.

3)Because that employee had alcohol in his bloodstream, he was sacked

4)The employee now admits to drinking wine the day/night before his shift

5)LU carried out previously agreed rules and procedures, and the tests were conducted by a third party in order that there is no victimisation when tests are conducted.

6)Diabetes is now being used as a reason for drinking wine(??)

7)Because LU refuses to change the rules for this one (ex-)employee, staff have been called out on strike

8)Above, I read that this should be some sort of "test case" to change existing rules, whereas I would have thought these rules have been made and agreed because of previous events and test cases which have caused these rules to be created

9)Those calling for a strike are calling for re-instatement of the employee with alcohol in his system, irrespective of how this will impact on other peoples' lives.

Am I right, or have I still misunderstood the situation?

[Colin]

Looks about right to me.

I'm not going to debate my emploers policy of zero tolerance. It has been that way since I joined the company in 2001 and they pay my wages.

[John Tuthill]

Feb 13, 2015 13:27:34 GMT class411 said:

Feb 13, 2015 13:19:02 GMT Colin said:

I am 100% certain that I have "interpreted" my employers policy correctly - it is zero when booking on.

So how do you account for the known scientific fact that all humans produce alcohol as part of the digestive process and that alcohol has to enter the blood stream to be metabolised?

As such you cannot have all of:

1) Humans driving trains
2) Fully accurate alcohol detection
3) A policy of absolute zero blood alcohol

It is simply not logically possible for all three to be simultaneously true.

This may seem to be unnecessarily pedantic but it has relevance, because in means that in practice you must allow a small level of alcohol, or no one would ever pass a test. And it is how that small level is calculate and measured that is the crux of the current situation.

I wonder what the test/limits are for airline pilots? There has been a couple of cases recently. What is BALPAs answer to this?

[class411]

Feb 13, 2015 13:51:34 GMT John Tuthill said:

Feb 13, 2015 13:27:34 GMT class411 said:

So how do you account for the known scientific fact that all humans produce alcohol as part of the digestive process and that alcohol has to enter the blood stream to be metabolised?

As such you cannot have all of:

1) Humans driving trains
2) Fully accurate alcohol detection
3) A policy of absolute zero blood alcohol

It is simply not logically possible for all three to be simultaneously true.

This may seem to be unnecessarily pedantic but it has relevance, because in means that in practice you must allow a small level of alcohol, or no one would ever pass a test. And it is how that small level is calculate and measured that is the crux of the current situation.

I wonder what the test/limits are for airline pilots? There has been a couple of cases recently. What is BALPAs answer to this?

As a pilot (private), I can tell you they are low. The once common notion of 'eight hours throttle to bottle' has long been discredited.

I can also tell you that any test that could result in a pilot losing their licence must be carried out in a manner that would result in the evidence being acceptable in a court of law.

Any pilot's union would, I'm sure, take the same line, mutatis mutandis as the RMT:

Driving over the specified limit is unacceptable and will not be supported by the union but if the procedures for determining a particular driver's blood alcohol content are not met with then the union will support the driver concerned.

[class411]

Feb 13, 2015 13:38:59 GMT castlebar said:

I'm clearer on this now. Thanks to all.

My understanding is thus:

1)There is a "No alcohol if the bloodstream" policy when staff are signing on

Glad you're clear about that as it is nonsensical when applied to an entity that creates alcohol as part of its metabolism and will thus aways have a non zero blood alcohol content.

2)Somebody signed on for work to drive a train, and was tested for alcohol in the bloodstream. He was re-tested and the same result was obtained.

I suppose you are one of those people who would be happy if signal lamps were always paired for safety - and wired in series.

Makes about as much senses as saying 'the test was repeated with the same result' when refering to a test conducted by a hand-held device that is specifically NOT deemed to be acceptable for providing evidence in a court of law.

4)The employee now admits to drinking wine the day/night before his shift

Why have you put the word 'now' in there?

Do you have any evidence that he ever denied this?

Or are you just desperately trying to show him in the worst possible light by suggesting he has changed his story.

5)LU carried out previously agreed rules and procedures, and the tests were conducted by a third party in order that there is no victimisation when tests are conducted.

Pure supposition. There is no evidence one way or another that the procedure carried out was 'previously agreed'

6)Diabetes is now being used as a reason for drinking wine(??)

If you really believe that is what anyone is saying, I'd give up trying to understand anything more complicated than Andy Pandy, now.

7)Because LU refuses to change the rules for this one (ex-)employee, staff have been called out on strike

Tendentious nonsense. That is not even close to the situation.

8)Above, I read that this should be some sort of "test case" to change existing rules, whereas I would have thought these rules have been made and agreed because of previous events and test cases which have caused these rules to be created

9)Those calling for a strike are calling for re-instatement of the employee with alcohol in his system, irrespective of how this will impact on other peoples' lives.

No, they do not want the employee reinstated with alcohol in his system.

They are want LU to agree to abide by the result of arbitration or an employment tribunal which would determine if the test procedure was fair and if it was correctly carried out.

Am I right, or have I still misunderstood the situation?

Some of the above is muddled, some inaccurate, some deliberately tendentious, and some demonstrates a fundamental misunderstanding of common mode failure.

But, basically, you have misunderstood the situation (possibly deliberately) in a number of ways.

[John Tuthill]

Feb 13, 2015 14:19:56 GMT class411 said:

Feb 13, 2015 13:51:34 GMT John Tuthill said:

I wonder what the test/limits are for airline pilots? There has been a couple of cases recently. What is BALPAs answer to this?

As a pilot (private), I can tell you they are low. The once common notion of 'eight hours throttle to bottle' has long been discredited.

I can also tell you that any test that could result in a pilot losing their licence must be carried out in a manner that would result in the evidence being acceptable in a court of law.

Any pilot's union would, I'm sure, take the same line, mutatis mutandis as the RMT:

Driving over the specified limit is unacceptable and will not be supported by the union but if the procedures for determining a particular driver's blood alcohol content are not met with then the union will support the driver concerned.

Thank you very much for that info.
One of the common comments so far as this driver is concerned, is will it stand up in court?
When a motorist is breathalysed, he is then taken to the nick for another test. It's the 2nd test which is produced in court, the road side test being just an indicator.
Are there any parallels in the way that LUL and the Met say carry out these tests?

[Chris M]

Feb 13, 2015 11:20:33 GMT Colin said:

Surely it doesn't matter what device is used, or how the procedure is conducted - its done by outside company BTW! - the fact remains that alcohol was found in his system and thats that. Like I say, the "limit" is zero, so any alcohol registered is a failure to comply.

As I understand it, the claim is that the test designed to find alcohol in the bloodstream actually found something that was not alcohol. That something being present in his bloodstream because of his diabetes.

As for the human-produced alcohol, I suspect that the test used is not sufficiently accurate to pick that up. Any test has a margin of error, e.g. the police don't charge anyone who gets an evidential result between 36 and 39µg/100ml as the test isn't reliable enough to be 100% certain in all cases that they were over 35µg/100ml. Assuming the testers used for LU t/ops have a similar margin of error, then although the limit is 0 they wouldn't record a positive test result for less than ~5.