Tube strike threat over sacked driver

Moderator comment :-

Can we please keep discussion civil and devoid of unnecessary personal insults? Thank you.

Alas, everyone else...

Not that I can judge, as you'll soon see:

For anyone who hasn't seen it, I'd like to draw your attention to an - I think - excellent summary by Aslef Shrugged. Various blog posts either side of this one also contain useful information.

Now there is no real reason to take issue with our friend Colin's assertion that no (or practically no, if you insist) alcohol may be present. This is an absolutely vital requirement and is not up for dispute. Nobody is seeking to defend anybody who turns up for work with any (apart from the natural amount, if you insist) alcohol in their blood. Everyone accepts that when they take the job. I can fish out for you exactly what Network Rail say on the matter if anyone's interested and I suspect LU staff in safety critical roles get something similar.

However, from reading Shrugged's blog, it does seem that LU also publish guidelines on how much you can drink and when before booking on to ensure that you're not over the limit (but can still drink in your life), which AMcG complied with.

The second issue is that there is a small chance of some breathalysers giving a false positive result when used on individuals with type II diabetes. This is only a small chance, though, which is probably why the issue hasn't come up before.

So, from AMcG's point of view, he followed LU's guidelines on drinking alcohol and turned up to work under the impression that he had no alcohol in his blood. None. He was within the limits. This is a belief in which he could have been mistaken, of course, but he naturally seems to believe that there was a mistake. This is a belief which the unions think is reasonable enough. There is nobody saying it's okay to have a little bit of alcohol in your system when you book on. They're saying: I don't think he did have any alcohol in his system - perhaps there was a mistake.

That's the first point. Bear in mind, too, that AMcG may not have known that type II diabetes can cause false readings, which is the most reasonable explanation for why it cropped up later.

The second is the more cogent one and it's what the strike is ostensibly about. When the reading is in doubt, what should happen is that the urine sample is tested. Type II diabetes cannot, as far as I know, corrupt the results of the urine test. However, LU discarded the urine sample before anyone could test it and nobody knows why. And therein really lies your problem. You've got a driver who believes there's a mistake and LU have thrown away the evidence that could have vindicated him. It may also have condemned him. I must stress that I don't know if he *was* over the limit (of zero (or essentially zero, if you insist)), those breathalysers are supposed to be good (however it seems it may have been administered by a trainee which may have introduced error).

But the point is, those who are willing to strike think that LU aren't playing at all fair - or worse - have something really quite serious to hide. And nobody wants to be the next victim without any recourse.

Which is not to say that this feeling is entirely justified - I've never worked for LU, unlike some of our esteemed commenters - but that - in theory at least- is "the 411" as they used to say

Or, at least, it's what I understand of it from t'internet.

Maybe its a mark of the employer then. When my employer wishes to make changes to our terms and conditions of employment they ask our unions early on.




Not a strike no, action short of a strike perhaps, raise a grievance perhaps because (as this thread has demonstrated) there are a number of commonly known occasions where false positives are possible with a breath test; probably.

Exactly the same as there can be protests because of a planned something. Its no use chaining yourself to a tree, when said tree has already been dug up to make way for a new road that you don't want across your garden!

You're trying to make things clear.............you then say you have no idea about the incident concerned and then state its anything but cut & dried. Ok, whatever.....

We (the forum staff) are often blamed for the way we run this forum as the reason LU staff have left this forum yet this thread is proof of the real reason - non LU people telling LU staff they're wrong when they ain't!

As I've not got long at home this is the nearest reference I could find and upload quickly:



As you can see, its taken from an ASLEF document and it clearly mentions about complying with a zero alcohol level.

Please desist telling us that a zero tolerance policy is illegal, impossible, or otherwise wrong - it clearly isn't.

Zero tolerance and zero alcohol are not the same thing.

The ASLEF guidance mentions "zero alcohol" but that is not the rule book. Human lung capacity is 6 litres - 3,600,000,000,000,000,000,000,000 molecules. "Zero alcohol" would literally mean not a single one of those molecules is ethyl alcohol. There is no machine in existence which can identify such tiny concentrations. So in practice any breathalyser is calibrated to be set off by a certain concentration of alcohol, and you get a "positive" if it detects more than that.

False positives can occur in any medical test - alcohol tests being no exception. And it is well known that diabetics can give false positives. So what if he tested negative last time? It is a metabolic disorder - your biochemistry (particularly the blood sugar levels) go all over the place because you can't control them. So you can produce different results to blood breath, urine or any other samples on different days.

And as the tests are random his previous test may have been the previous day, the previous month the previous year, or this may have been the first test he ever had. have

It seems that when anyone says what you want to hear, it makes things clearer!



Have you still not grasped the fact that doing exactly the same test with exactly the same equipment twice, within a few minutes of each other does not mean any more than conducting one test if the objection to the test is that the equipment, buy it's nature, cannot provide accurate results?



You see, this is where you are completely failing to understand the subtleties of the situation.

Drivers (I assume) accept that they must arrive at work with a 'zero alcohol level' (whatever they understand that to mean).

That does not mean they give LU carte blanche to use any flawed method to decide that they have alcohol in their blood stream when in fact they do not.

I would have thought this was obvious, but, I have to say, you seem absolutely determined that the driver in question is guilty without affording him the natural justice of a fair hearing.

More than one Somebody's I'm sure!

Actually, that page does not "mention about complying with a zero alcohol level" - though it does refer to another section  "Alcohol and Drugs - Guidelines for Employees" which may well do.

What it does say is that a sample (of breath and/or urine) must be provided on request - and that failure to provide is a disciplinary offence, potentially (not automatically) leading to summary dismissal.

It also provides advice on how to have zero alcohol: without stating whence that advice comes from (ASLEF, LUL or otherwise), whether it was approved other than by ASLEF, or what it was based on (research by whom, or whatever).

I haven't got the time to turn my bedroom upside down finding the right documents to refer to.......I have to say I'm disapoonted at having to prove what I know to be fact about my own employment policies but hey ho.

I have come across a remark in my reams of paperwork that LU's drug & alcohol policy is based upon the legislation contained within the Transport & works act 1992 - so I'm guessing thats your legal angle sorted.

Thats all I'm gonna post on this subject.

EDIT: forgot to add that the advice on how much to drink in the 24 hours before booking on is LU's and comes from their own internal occupational health department.

These are extracts from our D&A guidelines -

The Transport and Works Act 1992 contains provisions relating to the use of alcohol and drugs by certain employees working on the railway (LU, Agency staff, Contractors and Consultants) defined as safety critical.

Those LU employees who are categorised as safety critical will be guilty of a criminal offence if they are unfit to carry out their duties through alcohol or drugs or if they are under the influence of/unfit because of
alcohol or drugs whilst carrying out their duties. ( See Appendix F for a definition of Safety Critical )

All employees are issued with a personal copy of the Standard which is duly signed for. Standards are readily available from the Employee Relations Website. Any manager or employee who has not been issued with a personal copy should check the ER Website or contact their own HRS for a copy.
The company has decided that to minimise any safety risks to customers and employees, it will have a ZERO alcohol policy. This also ensures that employees will stay within the limits laid down in the Transport and Works Act.

To guarantee not reporting for work under the influence of alcohol, employees must not consume ANY alcohol in the eight hours immediately before booking on and no more than seven units of alcohol are to be consumed in the sixteen hours before that eight hour period commences.

This is an extract of a message to all LU staff from Nigel Holness (Operations Director JNP) -

...the breath alcohol tests we conduct at LU use a industry-leading fuel cell technology that isn’t affected by diabetes (as has been alleged repeatedly by the RMT). Several other employees were tested but they all showed readings of zero alcohol. The individual at the centre of this case was tested twice. There was alcohol in his bloodstream as he attempted to book on to drive a Northern line train with up to 1000 people on board and that’s a clear breach of our zero tolerance policy, so he lost his job.

I understand all that - and note that "zero alcohol policy" means none to be consumed or kept on the premises, and none to be consumed less than eight hours before going on duty. (and dismissal if turning up for work unfit for duty - which is defined as over a certain (very low) limit.

What I do not understand is why LU are not prepared to defend this dismissal in a court of law. LU are not above the law. The driver thinks there is a case to answer. LU should let him have his day in court. Whatever the facts turn out to be, until LU confirm that they will respect the court's decision, they are in the wrong.

That is what sparked my interest in this case.

And why I have been somewhat dismayed at the number of people queuing up here to rubbish the idea that the driver might have a valid defence.

It's what I'd expect from the readership of the daily fail but I'd hope for a more balanced and fair minded approach, here.




That only applies in a criminal case.

The court we are referring to here is a civil one and no such restriction applies.

It may be that the alcohol threshold for a criminal offence is significantly higher than LU's fictional 'zero alcohol in your blood stream', and thus there would be no case to answer.



It would not be the first time that a company (or government department) has pig headedly insisted in continuing along an unsupportable path, despite all advice to the contrary.

Of course, that might just as easily apply to the union!



ETA

It could, of course, be, that the case relies on a pivotal and arcane legality that has not yet got any associated case law, and both sets of barristers have said that there is a fair chance that their side could win in court.

I have to admit to feeling decidedly uneasy about all this. Firstly, the breathalyser machines are not considered admissible evidence when used by the police (let alone a private company) and require either a calibrated machine at a police station, a urine test or a blood test as proof of guilt or otherwise. Why then was one relied on (twice) in this case and why was the urine sample destroyed and not taken into account? I'd have thought this was grounds alone for the case to be dismissed.

To be honest if I were the person facing the sack I'd have insisted on a further test on a seperate device where diabetes is not a possible contributory factor, not the first device again. This in itself is basic stuff. You don't use the same machine to prove or disprove a first reading.

The unions have predictably gone to DEFCON 1 when IMHO they'd have been better off funding a court case for the person in question. Instead, as has been rightly pointed out by 411, they've given yet more grist to the mill of reactionaries who sign themselves "Disgusted of Mayfair".

The whole episode is pretty shabby, on both sides.