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Post by rheostar on Feb 14, 2015 19:44:19 GMT
I actually wonder why he wasn't taken to court, vide the information rheostar has supplied on it being a criminal offence? Is a Tube driver not safety-critical? Seems a little strange, given their agreed zero-tolerance approach, that they apparently don't want to go to court at all. There could be a very good reason for this, of course, but by refusing to allow a higher authority to deal with it, they give the impression they know their case is full of holes, as perhaps advised by their briefs? It's only be a criminal offence if a driver has exceeded the road drink driving limit of 35 micrograms of alcohol for every 100 millilitres of breath. In the past, I've been involved with 'for cause' incident testing where a member of staff had been reported as being under the influence of alcohol. The BTP were called and they carried out a breath test on the staff member. The test came up as amber on the breath test machine so the BTP were not interested as although the staff member had been drinking, he'd not exceeded the drink driving limit and not committed a criminal offence. However, the LU's standard is zero. A further breath test was carried out by the independent company that we use and the staff member was proven to have alcohol in his system. He was subsequently dismissed from LU. I'd imagine that the Northern line diver is in a similar situation. He's not committed a criminal offence, but had a positive reading on the breath test. If the test is not zero then he's breached the company standard and will have to face the consequences. Why would there be a need for this incident to go to court? At a later date, the driver could take LU to an industrial tribunal regarding his dismissal where the RMT can fund the driver if they believe he has a good case. |
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Post by norbitonflyer on Feb 14, 2015 21:44:05 GMT
Why would there be a need for this incident to go to court? At a later date, the driver could take LU to an industrial tribunal . An industrial tribunal IS a court! And it is LU's refusal to say they will respect that court's decision and reinstate the driver if he wins (n.b IF he wins) that the Union objects to. No-one, as far as I am aware, has suggested that criminal proceedings are to be taken against the driver. Civil proceedings can only result in a criminal conviction in the event of a party to the civil proceedings being in contempt of court (e.g failure refusal to comply with an order of the court) |
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Post by Tom on Feb 14, 2015 22:11:13 GMT
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 Not quite. It cannot be 'no alcohol in the bloodstream' if no blood sample is taken. The alcohol measurement is done with a breathalyser in the same way that the police do initially at the roadside. Unlike the road traffic act however there is no second opinion via a blood sample. Other points to bear in mind are that the T&WA states you commit an offence if found to be unfit through consumption of alcohol or drugs. I'm sure there is a definition of unfit, and LU probably have a different interpretation to that of a lawyer. The second point to keep in mind is that for a conviction in a criminal court, the case must be proved beyond reasonable doubt. LU do not have that level of proof and can dismiss someone where reasonable doubt may exist, as in this case. I would however agree with the previous posts about reuse of the same breathalyser which does remove an element of diversity in the evidence gathered, and I'm sure neither party is telling us the full story. |
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Post by rheostar on Feb 15, 2015 6:54:35 GMT
Why would there be a need for this incident to go to court? At a later date, the driver could take LU to an industrial tribunal . An industrial tribunal IS a court! And it is LU's refusal to say they will respect that court's decision and reinstate the driver if he wins (n.b IF he wins) that the Union objects to. You're right. What I should have added was that the driver can go to an industrial tribunal and if found to have been wrongly dismissed, get compensation. However, from what I know of some previous IT cases he won't get his job back. |
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Post by norbitonflyer on Feb 15, 2015 16:17:19 GMT
You're right. What I should have added was that the driver can go to an industrial tribunal and if found to have been wrongly dismissed, get compensation. However, from what I know of some previous IT cases he won't get his job back. A tribunal can make a reinstatement order, but they are rare www.lyonsdavidson.co.uk/news/3668/employment-tribunal-reinstatement-and-re-engagement-orders-for-unfairly-dismissed-employeesI would imagine that it is most likely to be awarded where the employee has a skill which is only of use to a single employer - the employer is in that sense a "monopoly customer" of his expertise - and he could not therefore get a job at similar pay anywhere else. From the reports I have read, the Union want to apply for such an order but LU would oppose it. |
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Post by trt on Feb 15, 2015 16:49:15 GMT
It's interesting to note that for a machine supposedly immune to other contaminants in the breath, the instructions claim that one should allow a significant time gap between a cigarette being smoked and the acquisition of a sample otherwise significant damage to the machine's interior sensors can occur. Nowhere is it mentioned if these devices have been tested with "e-cigarettes" or other "vapeing" systems.
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Post by class411 on Feb 15, 2015 18:07:35 GMT
It's interesting to note that for a machine supposedly immune to other contaminants in the breath, the instructions claim that one should allow a significant time gap between a cigarette being smoked and the acquisition of a sample otherwise significant damage to the machine's interior sensors can occur. Nowhere is it mentioned if these devices have been tested with "e-cigarettes" or other "vapeing" systems. I think it's the reliance on one machine that have LU running scared of a tribunal. I can't imagine any reasonable assessor being satisfied that a test or tests carried out with a single machine can provide fully credible evidence when they had the means to carry out a test of an accuracy acceptable for criminal conviction and they simply didn't bother to do it. One thing that is interesting is that neither side are saying what the actual result was. A marginal reading would be a very different beast to a reading that showed a significant percentage of the drink-drive limit. |
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Post by theblackferret on Feb 15, 2015 18:45:22 GMT
One thing that is interesting is that neither side are saying what the actual result was. A marginal reading would be a very different beast to a reading that showed a significant percentage of the drink-drive limit. I suspect neither side is saying anything about that, because it's strictly irrelevant to whether the 2 x tests on the same machine were or were not inaccurate or constituted an inappropriate procedure. Unless either or both results were plainly ridiculous (ie showing about three times the drink-drive police limit, when anybody who actually was that intoxicated wouldn't be able to walk at all, or even see the blasted train they were about to drive!), of course, in which case things would never have come to this pretty pass in the first place. I ought to add, I do not believe a 'significant' result would have seen either the official side fail to call the police in as well, nor the union attempt to defend someone in those circumstances. |
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Post by Deleted on Feb 15, 2015 19:27:30 GMT
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Post by trt on Feb 16, 2015 10:53:17 GMT
Well yes it was. The "wife beating" question is an example of the 'loaded question' or 'complex query fallacy paradox'. This Japanese have a third answer to a yes/no question, "mu", which is used to indicate that the question itself cannot be answered because of the error. In English, the correct response would be to point out that the question has to be rephrased before it can be answered. Just repeatedly trotting out a phrase out of context like Steve Hedley did was incorrect, tactless and completely lacking in any strategy. Unfortunately when placed before a hostile interviewer, these situations all too often arise. I miss Paxman. |
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Post by North End on Feb 16, 2015 13:04:02 GMT
Mr Hedley comes across poorly, however I'm not convinced the interviewer was entirely blameless, as the tone of voice when he asked the first question comes across as confrontational. Since there appears to be a considerable amount of debate over the issue I find it hard to take a firm view, not being a medical expert nor expert on the technology. However, somehow the issue needs to be resolved, to ensure staff have full faith in the testing process. Thusfar neither side has provided anything which I'd regard as conclusive. With this in mind, as things stand I think the best way forward is an employment tribunal. |
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Post by whistlekiller2000 on Feb 16, 2015 18:24:44 GMT
Mr Hedley comes across poorly, however I'm not convinced the interviewer was entirely blameless, as the tone of voice when he asked the first question comes across as confrontational. Since there appears to be a considerable amount of debate over the issue I find it hard to take a firm view, not being a medical expert nor expert on the technology. However, somehow the issue needs to be resolved, to ensure staff have full faith in the testing process. Thusfar neither side has provided anything which I'd regard as conclusive. With this in mind, as things stand I think the best way forward is an employment tribunal. Nick Ferrari has always struck me as a slime ball and his sneering tone in the opening question reveals that he smugly believes himself superior to the interviewee, a rather sanctimonious, self important stance from the off and the type of thing I dislike intensely whenever I come across it. However this doesn't excuse the cretinous behaviour of the Union official. He knew he was on a very well subscribed radio show and should have retained his dignity instead of childishly chiming on like he did. In this respect Nick Ferrari was right in what he said, a position such as the one held by Mr Hedley, likely to involve high level exposure in the media requires skilful understanding of how to behave and an ability to remain calm. He is obviously, on this showing, incapable of neither one nor the other. This whole episode stinks, from the initial breath sample right up to the lamentable sound-bite illustrated above has made fools of LUL and the RMT in equal measure. I feel sorry for the sacked man to an extent. Removed from work on possibly suspect evidence and then let down by his union official's public performance. |
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Post by superteacher on Feb 16, 2015 21:11:05 GMT
What a mess this whole situation is!
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Tom
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Post by Tom on Feb 16, 2015 21:31:26 GMT
One thing that is interesting is that neither side are saying what the actual result was. A marginal reading would be a very different beast to a reading that showed a significant percentage of the drink-drive limit. I suspect neither side is saying anything about that, because it's strictly irrelevant to whether the 2 x tests on the same machine were or were not inaccurate or constituted an inappropriate procedure. Unless either or both results were plainly ridiculous (ie showing about three times the drink-drive police limit, when anybody who actually was that intoxicated wouldn't be able to walk at all, or even see the blasted train they were about to drive!), of course, in which case things would never have come to this pretty pass in the first place. I ought to add, I do not believe a 'significant' result would have seen either the official side fail to call the police in as well, nor the union attempt to defend someone in those circumstances. According to a page in support of T/Op McGuigan the readings were 34 and later 32 microgrammes respectively. If the first reading had been any higher it would have been an offence under the T&WA and thus subject to the Police arranging a second test via blood or urine to confirm, which would have resolved things one way or the other pretty quickly. |
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Post by rheostar on Feb 16, 2015 23:17:58 GMT
If that's a page in support of the driver they're doing him a disservice! I didn't know it was that high. The driver doesn't have a leg to stand on.
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Post by rincew1nd on Feb 16, 2015 23:40:04 GMT
A little nugget from that interview, LU breath tests are sensitive to 10% of the legal limit.
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Post by Chris M on Feb 17, 2015 2:15:59 GMT
If that's a page in support of the driver they're doing him a disservice! I didn't know it was that high. The driver doesn't have a leg to stand on. IFF the results are accurate. I don't know whether they are or not, but it is the main disagreement between LU and the union at the heart of this dispute. If we assume that the driver's story about having a glass of wine the night before his shift is true, that this was consumed 8 hours before the test (the guidance Colin quotes says this is the margin that should be left), and this was the only alcohol he had consumed in the preceding 24 hour period (I've not heard anything either way on this). If this was a large (250ml) glass of wine that was a strong 15% then, according to the formula given by Wikipedia he had consumed (250 × 15) / 1000 = 3.75 Units. A very general rule of thumb is that you metabolise 1 unit per hour (depending on lots of factors) so lets be conservative and say he metabolised 0.5 units every hour. Thus he should have metabolised everything after 7.5 hours. www.80mg.org.uk/guide.html states that an average man can drink 4 units immediately before driving and be under the 35µg/100ml of breath limit. Taken together, and there are a lot of assumptions here that may be incorrect, getting a reading 8 hours after drinking 3.75 units that is equal to or greater than what would be expected 20 minutes* after drinking 4 units would lead me to have significant doubts about the reliability of the machine producing such a reading. *The minimum time between consuming alcohol and a police breathalyser test being reliable. |
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Post by rheostar on Feb 17, 2015 9:09:28 GMT
If we assume that the driver's story about having a glass of wine the night before his shift is true, that this was consumed 8 hours before the test ... That's the thing, everyone seems to think the driver's telling the truth. From personal experience, I've know people to deny they've been drinking yet they've later admitted to it. |
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Post by superteacher on Feb 17, 2015 9:17:24 GMT
Listening to Steve Hedley is like listening to a throwback from the worst days of union militancy. All he is doing is reinforcing the public's incorrect view that tube drivers will go on strike for anything. Maybe Nick Ferrari was being provocative, but Steve Hedley's response just shows him for what he is - a total idiot.
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Post by suncloud on Feb 17, 2015 9:22:03 GMT
Ok, the breathalyzer that aslefshrugged on his blog suggests is used for lu testing is one approved by the home office for use on roadside breath tests. I'm pretty sure the police'd soon be on pretty dodgy ground arresting (let alone charging) people for drink driving based on a machine that is likely to give such a significant false positive as is being suggested in this thread. (As in a reading of around thirty when the tested party has no alcohol from drinking in their system).
If the test results are as reported I have no qualms about saying this driver should not be at the front of a train carrying up to a thousand people with that much alcohol in their system.
If as reported he has followed the guidelines on drinking and the high reading is due to medical reasons, that were not previously identified, then I believe there's a stronger case for reinstatement. (Subject to systems being in place to ensure that his alcohol level continues to be managed in light of the discovery of a medical reason.)
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Post by whistlekiller2000 on Feb 17, 2015 10:08:56 GMT
The easiest way to remove all doubt and prevent further inconveniences to thousands (as well as being fair to those being tested) would surely be for LUL to have properly calibrated evidential machines installed. I would also suggest either a blood or urine test as a standard follow up to take into account any mitigating factors such as diabetes. The unions could then rest easy knowing that they're not be supporting somebody who deserves the sack.
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Post by North End on Feb 17, 2015 10:13:22 GMT
If we assume that the driver's story about having a glass of wine the night before his shift is true, that this was consumed 8 hours before the test ... That's the thing, everyone seems to think the driver's telling the truth. From personal experience, I've know people to deny they've been drinking yet they've later admitted to it. The problem is that whilst we can never be sure of that one, there are now a number of possibilities which have been put on the table: 1) He knowingly drunk more. 2) He drunk more units than be believed he had. 3) He complied with the guidance of no more than 7 units in the period from 24 to 8 hours, but somehow still failed the test. 4) The test was not carried out correctly. 5) The equipment was defective. 6) His medical condition contributed to the result. It shouldn't have been difficult to rule out 4 & 5, and I'd like to see some qualified evidence regarding 6. So far I've seen nothing really definitive from either side. |
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Post by class411 on Feb 17, 2015 10:25:33 GMT
The easiest way to remove all doubt and prevent further inconveniences to thousands (as well as being fair to those being tested) would surely be for LUL to have properly calibrated evidential machines installed. I would also suggest either a blood or urine test as a standard follow up to take into account any mitigating factors such as diabetes. The unions could then rest easy knowing that they're not be supporting somebody who deserves the sack. This. It's too late, now, in this case, of course, but it is beyond belief that anyone would consider a single, portable, instrument sufficient for obtaining evidence that could ruin a person's life. They need to establish a much better system. If you stored vital data on just one disk drive, people would call you an idiot - rightly. If you drove a long distance in remote, rarely used, roads (more applicable in other countries) without taking a spare tyre, people would call you an idiot - rightly. And yet LU seem to think that it is reasonable to use a single instrument of a type that is specifically excluded from providing evidence in a court of law, to take a test that can remove a man's livelihood. Unbelievable! |
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Post by class411 on Feb 17, 2015 10:29:51 GMT
Ok, the breathalyzer that aslefshrugged on his blog suggests is used for lu testing is one approved by the home office for use on roadside breath tests. I'm pretty sure the police'd soon be on pretty dodgy ground arresting (let alone charging) people for drink driving based on a machine that is likely to give such a significant false positive as is being suggested in this thread. (As in a reading of around thirty when the tested party has no alcohol from drinking in their system). It may be approved for roadside testing but it is not approved for legally admissible evidence of driving over the limit. To be clear: It is approved for a test where a false positive will inconvenience someone with a trip to a police station for a proper test, but not for providing evidence that could get someone a fine and a driving ban (and, very occasionally, a prison sentence). |
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Post by suncloud on Feb 17, 2015 10:53:20 GMT
We though are not talking about a /criminal/ matter.
If roadside breathalysers used by the police were so unreliable / inaccurate to give a 30ug difference in reading to that which would be given by an 'evidential' machine then using that reading as grounds for arrest/detention would be dubious and probably be challenged. It wouldn't surprise me if the accuracy of the roadside machines now are virtually the same as evidential machines and the reasons for doing a test at the police station is more for procedural reasons than accuracy of readings. Remembering in criminal cases the police/CPS have to prove guilt 'beyond reasonable doubt'.
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class411
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Post by class411 on Feb 17, 2015 11:12:04 GMT
We though are not talking about a /criminal/ matter. Actually, we are. It's just that he didn't show a high enough reading to qualify for criminal proceedings. Although the point was ( You were the one who brought up roadside testing for a criminal offence) that these machines are not approved for the collection of evidence. Even for a civil matter, I don't think any sensible judge is going to accept evidence of a lower quality than that required when, generally, all that is at stake is a relatively small fine and the inability to drive for a year, for something that will permanently remove someone's livelihood and from the only source where he can gain that livelihood. Particularly as it would have been ridiculously easy for LU to have gained evidence that would be above reproach - they simply didn't bother. |
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Post by theblackferret on Feb 17, 2015 12:42:07 GMT
What also bothers me about this is the precedent LU have set.
Let's suppose the impossible happens, and a visibly-intoxicated driver turns up for work.
He is subject to a random test. They do breath & urine.
The meter shows 7. So, what now, if he insists on a second breath test and on the same machine?
And that registers 5? Can they do the urine now, because they've already set a precedent with how they've played this case & the testers should now throw it away; after all, two negative breath tests cannot possibly be wrong, can they?
And if anyone wonders why the union leader is hot under the collar about this, you try dealing with management that insists on moving the goal-posts of precedent and procedure when it ruddy well suits them, regardless of the consequences for anybody else, as the above hypothesis shows. I have experience of dealing with just that, and pleasant it is not.
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class411
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Post by class411 on Feb 17, 2015 13:22:22 GMT
Because this is a matter of public safety, here is a suggestion as to what they should do:
1) All safety critical staff to take a hand held test at every clocking on.
2) If employees registers alcohol then they are sent home and it is treated as if they took unauthorised absence. This is feasible since there is a 'zero' limit and it's not as if an employee is going to drink far too much, too close to work, in the hope of creeping under.
3) If the employee objects they can take a blood/urine test but will be charged the cost if it confirms the hand held reading. (Obviously they cannot work that day but if the initial reading is in error they won't suffer the 'unauthorised absence' strike.)
That way LU won't just weed out a drink impaired driver if they happen to do a random check on the day, and staff will know that if the abuse they rule they will be caught and suffer some consequence.
Seems eminently sensible to me.
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Post by suncloud on Feb 17, 2015 14:11:27 GMT
We though are not talking about a /criminal/ matter. Actually, we are. It's just that he didn't show a high enough reading to qualify for criminal proceedings. I concede matter is not the best word to have used, maybe 'case' would be appropriate. Obviously 'being unfit through drink' is a criminal offence. It seems to me there may not be a proscribed limit set out in the written legislation, but either through case law or just through policy it appears BTP use the drink-drive limits as their benchmark. The key point I am trying to make is that I believe the portable testers do give a fair indication of alcohol in breath & that I strongly doubt that the problem in this case is unlikely to be the physical equipment, which others have doubted. This is because I doubt the police would get away with using the same equipment to justify arrests on suspicion of drink-driving (or indeed the railway offence) if it was likely to give such an erroneous result. Arresting someone is not a mere 'inconvenience' or a trivial matter (of course, neither is losing your job) as you are denying that person their right to freedom/civil liberties, and regardless of the outcome, details of your arrest may remain on record. The debate on whether the drugs and alcohol testing policy of LU is fair, appropriate, clearly communicated and consistently applied (relating to this case or generally) is something that as someone who is not a Legal professional, LU staff member or (Rail) Union official, and not in full possession of the facts I can only share my perspective in a limited way. I support LU in dismissing someone who has breached an important rule of their workplace. I support employees (supported by their unions) in that they need to be protected from being dismissed without due cause. They also need (at all times) to be treated fairly, consistently, and in accordance with relevant/published/agreed legislation, contracts, policies and procedures. I recognise that there is potential for a situation where despite failures in the way a given dismissal has been handled, the reason for dismissal still applies and that it may be that reinstatement remains inappropriate but compensation for those failures made may be appropriate. |
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Post by Chris M on Feb 17, 2015 15:06:03 GMT
class411That would only work if all of staff, unions and management have confidence that the rate of false positives is extremely tiny as LU employ a huge number of safety critical staff - a 2012 FOI request identified that there were at peak 530 trains in service across all lines, all of which need a driver (and the peak requirement has increased since then). Obviously that's only one shift's worth, so lets say that there are on average 3 drivers per peak train in service per day (figure plucked from the air), giving ~1590 drivers who will drive a shift on a given weekday. Then there are spare drivers - who need to be able to do a safety critical job if required - let's say an average of 3 per depot, which is another 60 staff (based on CULG's definition of a train depot) per shift (4 per day?) - bringing the total number of drivers to ~1830 Then you need to add the depot staff - I'll pluck average of 5 safety depot staff per depot per shift out of the air (another 400). Then you add signallers - an average of 3 per line per shift? Then station staff - In 2012 there were 262 stations owned and/or managed by LU. Let's give a conservative guess of an average of 5 staff per station per shift - 5240 people. Line controllers - 4 per line per shift? - another 160 I'll stop there without considering engineering staff, safety critical managers, etc. as even with the hopefully conservative estimates above we have 7750 safety critical staff working on LU each day. This table shows the number of people on average who would receive a false positive test for different failure rates of the equipment | Failure rate | False positives per day | False positives per week | | 1% | 77.5 | 542.5 | | 0.1% | 7.75 | 54.25 | | 0.01% | 0.775 | 5.425 | | 0.0001% | 0.008 | 0.054 |
So even if only 1 test in a million gives a false positive, you are looking at unnecessarily sacking 1 person every 20 weeks, or 2-3 people a year. Or in reality most likely more as I've tried to underestimate the number of staff. At a 1 in 10000 failure rate you are incorrectly sacking 2 people every 3 days - which is unsustainable practically (you'd quickly run out of staff) as well as politically.
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