Tube strike threat over sacked driver

They don't have to lose money. They can go to work.
I don't know the full story, but going by what I've read in this thread, there's no way I'd support this strike if I was a T/OP.

Just had a quick read through this thread - I second the notion that many people I have spoken to have absolutely no sympathy for this driver and indeed the reason he has received so much support is that he knows a lot of 'higher ups' in the RMT. As an RMT member I find it sickening that they would deem it acceptable to have several workers lose money just because someone is a 'mate'.

This is from a FOI request to TfL that confirms all cut offs. As previously mentioned, it isn't a zero alcohol policy, just a zero tolerance to being over the limit.


Your request has been considered in accordance with the requirements of
the Freedom of Information Act and our information access policy. I can
confirm we do hold the information you require.



Cut-off levels for drugs testing are set at industry wide agreed levels
designed to prevent false positives. Please see the below immunoassay
cut-off levels. Please note that the immunoassay is the screening test.



Amphetamines – 1000 ng/ml

Benzodiazepines – 200 ng/ml

Cannabis – 50 ng/ml

Cocaine – 300 ng/ml

Opiates – 300 ng/ml

Propoxyphene – 300 ng/ml

Ketamine – 1000 ng/ml



The breath alcohol cut-off is 13 ug/100ml BrAC. 


Diabetes affecting breathalyser results really is a thing of the past, although I will not argue that if procedure was not followed by LU then regardless the result should be null and void and a lesson to them that rules are there to be followed by BOTH parties. I cannot support striking however, especially when barely any of us would take the risk of drinking so close to a shift - regardless of what the guidelines advise. We earn a good wage for what we do and I always consider that part of my salary is earned because it inhibits my social life so much. Realistically many of us know that in office jobs turning up hungover is a regular occurrence with little or no repercussions, but for us this is not and will never be the case. It's just not worth the risk for me to drink the night before a shift, even if I do feel a little bitter about it sometimes (birthdays and Christmas for example)

I predict that should this strike go ahead support will be extremely weak and the union will look ridiculous. Take them to the employment tribunal, let a judge decide using the evidence given and carry on from there. Striking is not the answer here.

Isn't that contempt of court?

No, and I also believe that certain authorities are now enabled by legislation to do just that.

And, to be fair, there was always a certain mitigation regarding re-employment available if the employer could show to do so was detrimental to other staff etc. The legislation is now rendered so that the employer no longer needs to show any reason for ignoring such a decision.

They would not be able to refuse to pay compensation, should that be in an award, but none of us can anticipate this case would attract such an award.

I thought the following might be of interest. It's part of an open letter on the company intranet from LU's Head of Occupational Health
regarding breath tests -

Dear colleagues,

I manage London Underground’s Occupational Health department. One of our responsibilities is to ensure that the drug and alcohol testing protocols used by London Underground are consistent, fair and accurate. I have been asked a number of questions recently about the equipment and methodology we use. I’ve also been asked whether diabetes can affect breath alcohol tests.

Testing protocol

Occupational Health is here to ensure the health and wellbeing of all London Underground employees. We take responsibility for all of the medical tests that ensure a safe workplace, such as drug and alcohol tests.
The policy at London Underground is ‘zero tolerance’ and we need to be very careful that we test in a way that’s fair and accurate. Unannounced tests are always conducted on multiple employees. Positive breath tests are followed up with a second test.

The Transport and Works Act 1992 requires London Underground to exercise due diligence in its management of safety, in relation to employees and drugs and alcohol. If we didn’t test London Underground could be prosecuted in the event of an accident caused by an intoxicated employee. To help us ensure that drug and alcohol tests are implemented fairly we developed our testing protocol in conjunction with external toxicology and rail industry experts, trade unions and regulators.

Breath alcohol testing

Our testing equipment uses fuel cell technology, which generates a tiny electrical current when exposed to exhaled breath alcohol and oxygen simultaneously. The electrical current generated by the fuel cell can be measured with great accuracy to give a robust, fool-proof way to understand how much alcohol is in somebody’s breath at that moment. Alcohol levels in the breath have a known, consistent relationship with alcohol in the blood. Testing breath for alcohol is the gold standard way to test in a workplace safety context.

Unlike some testing equipment, fuel cell breath alcohol testing does not react to acetone. Acetone is a compound which can build up in a diabetic person’s bloodstream and may trigger ‘false positive’ signals in other (semiconductor-based) testing equipment. The physical properties and design of a fuel cell breath alcohol testing device mean it can’t be affected - in any way - by a diabetic condition.

Urine testing

We do not take urine samples for alcohol tests because these don’t give a ‘real-time’ insight into blood alcohol levels. Breath testing for alcohol – when conducted using high quality fuel cell testing apparatus such as ours – gives results that have a known and consistent relationship to blood alcohol levels. Urine is utilised for our drug testing protocol and is considered to be the best method for this in a workplace context.

My team is here to ensure a healthy and safe workplace and we take pride in ensuring the testing programme is accurate, fair and impartial. Please contact my office if you are in any doubt as to the efficacy of our testing, if you are worried about your drug or alcohol use, or that of your colleagues. We’re here to help.

It's not so much not being able to get an accurate reading with the same device as: 'is the device working properly'.

That question can be reasonably answered if there is a properly qualified procedure for calibrating the device after it has given a positive. (This is what the police do with their vehicle speedometers.)

I am getting more and more concerned that LU are playing some kind of game here (as someone suggested earlier).

The way they are drip feeding information when it appears their case was pretty strong prima facie, is suspicious.

Also extremely suspicious is their attitude to the putative employment tribunal.

If their case is as strong as they appear to believe, there is no way in the world that the driver would win so why are they pointlessly antagonising the union by making the statements they have?

It seems to me that either there is a serious flaw in their case or they are deliberately trying to provoke the union.

In a workplace environment it would be very intrusive to do blood testing. But in the event of a positive result of course...

I note that the LU occupational health person's letter does not describe their procedure in any great depth. It deals purely with the technical aspects of testing, not how the personnel are managed (or mismanaged).

They also fail to mention that they should hold a person in a room away from any source of influence like a cigarette or vape for five minutes before taking the sample. If there's any question of mouth rinse or food stuffs contaminating the sample, surely the mouth should be rinsed with water?

LU employees have access to the intranet where the D&A policy and procedures can been seen, so it's not necessary for OH to describe them in an internal document. The procedures for D&A testing that we must follow are clearly described in a handbook (something that I won't post on here) that covers every eventuality. Nothing is left to chance.

Part of the procedure for a random D&A test is that person chosen is asked if they've been smoking etc prior to having the breath test. Again, all of the factors mentioned above are taken into consideration.

Prior to the tests commencing the breath machine is calibrated and witnessed by a duty manager. When a test is carried out, the employee chooses one of several sealed tubes to blow into before it's fitted to the machine. Before giving the sample, the employee is shown the side of the machine to see that it's showing negative.

Believe it or not, we're not amateurs at this. Most managers have supervised breath testing many times and have also undergone the same procedure. I've been selected for random testing several times.

LU employees know that if we fail the breath test then we must face the consequences. In the end, there's only one person to blame for failing a D&A test.

There is a third possibility-their lawyers have advised them that this case was a flawed procedure, for whatever reason, that no court would uphold as correctly applied. Why else would they fail to've put their case into the public arena by simple reference to what rheostar posted on how the tests are actually conducted and that this was applied to the case in question?

The fact they've failed to do that would not suggest the people testing are amateurs, rather that LUL haven't built a fail-safe into the procedure in the event of a possible faulty machine (ie use another machine for a 2nd test). The police do this or use urine/blood as well, so the precedent for testing is there-just because their level is much lower than the police's is no reason not to follow the same route, or do they believe they are subject to Papal infallibility with their procedures, and that the courts have actually been wrongly backing the police's method for 50 years?


EDIT-ADDITION

I have concerns about finding out the urine test is for drugs. So, the breath test is not designed to, I presume? If so, how long does it take the various substances to enter the urinary system, which tends to be quite a while after any ingestation to the blood system?

I ask this because of a reaction I had two winters ago to a Max cold relief. About three hours later, I suffered panic attacks, breathlessness and a raging thirst. There was no indication on the packet about the contents, nor on the leaflet inside regarding what I found out later that day was an amphetamine-based substance, so I'd been 'speeding'. Nor was there anything to say 'don't drive when using this produce;you may feel drowsy etc.'

So, how would that sit if

a)any LUL staff had done exactly what I did say half-an-hour before signing on & had guzzled a full bottle of water with the powder? Their mouth would be washed free of any amphetamine trace even if the breath test was for drugs, and it sure as heck wouldn't show up in a urine sample. Then, of course, if THEY started 'speeding' halfway through a shift...............?

b)another staff member is not affected as I was, but has taken the Max remedy every four hours during the previous day and again on waking up this morning. Their judgement might well be unimpaired, but their urine sample???

I was tested a couple of years ago, the urine sample went into a cup with which gave an immediate reading on drugs. this was clear so the sample was immediately disposed of. I would imagine that is what happened in this case.  

It does not say anywhere on the forum if this was a random test, if not presumably the same equipment would be used for other tests and if they came out negative..  I don,t need to continue.

It's getting quite amusing the things those hostile to the driver are now coming out with.

e.g. "In the end, there's only one person to blame for failing a D&A test."

Really?

So the procedures are guaranteed infallible?

The equipment and processes are guaranteed infallible?

The person/people carrying out the test are guaranteed infallible?


or: "No need to go to law."

So if you work for LU your employers are infallible and you and the unions have signed away the basic rights enjoyed by just about everybody else to seek the review of a court of law if you believe that someone has not acted properly?

Because you and the union 'signed up for' various rules, conditions, and procedures, you think it should mean you've signed away your rights under the law?


What is really strange is that all the driver hostile elements posting here - and there seem to be a surprisingly high number - seem to either have pre-judged the case or are content to allow LU to act as judge, jury, and executioner.

The expression 'Turkeys voting for Christmas' springs to mind.

If you drive a car and test positive for alcohol you can ask for a blood test as well which is carried out by a suitably qualified health professional the result of which is binding and can be used in court if required . Why have 2 breath machines for tube drivers when the process for car drivers is proven, so why not use the same system? I appreciate pass/fail levels maybe different however that is just setting the pass fall point. No politics, ifs or buts just facts why would anyone object to this?

That's not really surprising is it? You choose whether to raise a case or an appeal, and presumably do so only if you think you are in the right. But you don't decide whether a case is brought against you - you have to defend it, however weak you think your argument is. So I would expect the majority of civil cases to be won by the plaintiff.

There is also potentially a difficulty in arranging a suitably trained medical professional to attend. The police have access to on duty or on call medics to attend custody suites promptly for this and other purposes. I don't expect TfL have similar arrangements in place.

The Police (and CPS) need to prove 'beyond reasonable doubt' that an offence has been committed. Hence following strict procedures and the offer of blood tests etc. Employers don't have this same burden of proof to legitimately dismiss an employee. (Without reference to the specifics of this case). I suspect many of us outside of LU are under policies where if we were deemed to be 'unfit through drink' to do our jobs we could be dismissed without the luxury of any empirical testing...