Tube strike threat over sacked driver

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.

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-employees

I 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.

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.

Do you still beat your ex wife? Steve Hedley loses the plot with Nick Ferrari on LBC

audioboom.com/boos/2882899-nick-ferrari-asked-rmt-chief-why-tube-drivers-were-striking-the-union-boss-then-lost-the-plot.mp3

This was one big own goal!

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.

What a mess this whole situation is!

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.

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.

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!

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'.

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.

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.