Hull Trains Strike over dismissal

[43066]

Regardless of the merits of the issue I quite like a creative hacker mentality being applied to something as dry and boring as employment law.

That’s a novel way of describing it, and I agree it’s somewhat innovative!

 

[Carlisle]

Regardless of the merits of the issue I quite like a creative hacker mentality being applied to something as dry and boring as employment law.

However the numerous allegations in this thread & elsewhere suggesting the tribunal system is ‘broken’ indicate it’s more challenging than boring.

 

[43066]

But the numerous allegations in this thread & elsewhere about tribunals failing to uphold the law suggest its more challenging than boring.

I don’t think anyone has suggested that employment tribunals “fail to uphold the law”? People with knowledge of the area have merely pointed out that they’re a pretty ineffective method for unfairly dismissed employees to gain redress.

 

[mpthomson]

However the numerous allegations in this thread & elsewhere suggesting the tribunal system is ‘broken’ indicate it’s more challenging than boring.

I’ve had a lot of involvement in tribunals over the years, with various findings. I’ve not been involved in one where the law was not upheld once the decision was examined properly, whether that ended up in our favour or not.

 

[ainsworth74]

I’ve had a lot of involvement in tribunals over the years, with various findings. I’ve not been involved in one where the law was not upheld once the decision was examined properly, whether that ended up in our favour or not.

Yes I think it's important to be clear that there is, to my knowledge, no suggestion that the Employment Tribunal is acting in a way contrary to the law (and if they were there are mechanisms to challenge such a decision via higher courts) but that the Tribunal often doesn't often, when a claimant is successful, make the decision that the employee should be reinstated instead simply offering financial compensation (which itself can sometimes be seen to be insufficient). This is, often, seen to be unsatisfactory as in many respects the employer has still "won" (they got rid of an employee they wanted to rightly or wrongly) and the employee has still "lost" (they've got to find a new job and if it's a job like say a train driver they may struggle to find one which pays as well, has an excellent pension, and good Ts & Cs).

That's the issue with the Employment Tribunal rather than it not making legally correct decisions!

 

[TheLastMinute]

Yes I think it's important to be clear that there is, to my knowledge, no suggestion that the Employment Tribunal is acting in a way contrary to the law (and if they were there are mechanisms to challenge such a decision via higher courts) but that the Tribunal often doesn't often, when a claimant is successful, make the decision that the employee should be reinstated instead simply offering financial compensation (which itself can sometimes be seen to be insufficient). This is, often, seen to be unsatisfactory as in many respects the employer has still "won" (they got rid of an employee they wanted to rightly or wrongly) and the employee has still "lost" (they've got to find a new job and if it's a job like say a train driver they may struggle to find one which pays as well, has an excellent pension, and good Ts & Cs).

That's the issue with the Employment Tribunal rather than it not making legally correct decisions!

I suppose the crux of the problem is that once an individual has taken their former employer to tribunal, the implicit employer/worker relationship has by definition broken down. AIUI, this is likely to be a lawful reason to end the employment in and of itself, so there is little point giving the victim their job back. This is, of course, a problem for rolls such as train driving as the pay reflects the skill and responsibility inherent in the job.

 

[185]

I've had involvement with a number of railway employment tribunals and their judgements are all over the place. I sat watching one train company perjure themselves claiming a dismissal was a result of a clear breach of policy X, later admitting there wasn't a policy X as it was only introduced after the incident and then claiming they misremembered.

As bad as that is, the judge, who from memory is an ex- specialist employment solicitor from Thompson's (the union solicitor) just sat there and blankly allowed the case to continue, even finding in favour of the employer. Of all people present, she should have known the seriousness of the false claims, but it took a higher court to overturn her decision.

 

[ainsworth74]

I suppose the crux of the problem is that once an individual has taken their former employer to tribunal, the implicit employer/worker relationship has by definition broken down. AIUI, this is likely to be a lawful reason to end the employment in and of itself, so there is little point giving the victim their job back. This is, of course, a problem for rolls such as train driving as the pay reflects the skill and responsibility inherent in the job.

Absolutely, once you've been to an ET it's clear that the relationship is basically dead so I can see why they rarely order reinstatement. But I reckon that's why many people feel aggrieved even when they've won. I suppose at a large enough organisation it might be possible to order reinstatement but in a different part of the company should the employee choose to accept (I guess if you were say a Newcastle driver for Northern, you could order reinstatement at Manchester Piccadilly as that would basically be a fresh start) but at a small company like Hull Trains?

I think there's work to be done to make the Employment Tribunal outcomes feel more beneficial for the employee when they win but that's probably out with the scope of this thread! But it does go some way to explain why unions like ASLEF or the RMT (or more accurately their members) will sometimes feel like fighting tooth and nail rather than just sitting back in following the tribunal process.

I've had involvement with a number of railway employment tribunals and their judgements are all over the place. I sat watching one train company perjure themselves claiming a dismissal was a result of a clear breach of policy X, later admitting there wasn't a policy X as it was only introduced after the incident and then claiming they misremembered.

As bad as that is, the judge, who from memory is an ex- specialist employment solicitor from Thompson's (the union solicitor) just sat there and blankly allowed the case to continue, even finding in favour of the employer. Of all people present, she should have known the seriousness of the false claims, but it took a higher court to overturn her decision.

I'm sure tribunals get it wrong (after all no institution staffed by humans can ever be infallible*) but the point being that in general they probably get it right more than they get it wrong (particularly once you've read their reasoning, even if you don't like their decision) but when they do get it wrong there are mechanisms in place to try and make sure it's put right. As you yourself noted, that ET clearly went wrong but it was put right in the end by a higher court.

*Apart from this Forum of course!

 

[mpthomson]

Yes I think it's important to be clear that there is, to my knowledge, no suggestion that the Employment Tribunal is acting in a way contrary to the law (and if they were there are mechanisms to challenge such a decision via higher courts) but that the Tribunal often doesn't often, when a claimant is successful, make the decision that the employee should be reinstated instead simply offering financial compensation (which itself can sometimes be seen to be insufficient). This is, often, seen to be unsatisfactory as in many respects the employer has still "won" (they got rid of an employee they wanted to rightly or wrongly) and the employee has still "lost" (they've got to find a new job and if it's a job like say a train driver they may struggle to find one which pays as well, has an excellent pension, and good Ts & Cs).

That's the issue with the Employment Tribunal rather than it not making legally correct decisions!

That’s simply because the judges are intelligent enough to acknowledge that the relationship between employer and employee has basically irretrievably broken down due to the fact of the employee bringing the tribunal.

 

[43066]

That’s simply because the judges are intelligent enough to acknowledge that the relationship between employer and employee has basically irretrievably broken down due to the fact of the employee bringing the tribunal.

But in many cases of unfair dismissal that breakdown will have been caused by the employer’s conduct, buy the employee still loses out in the sense that they no longer have a job. Thus the suggestions upthread that ASLEF should simply wait for the tribunal process to conclude don’t reflect the reality of the situation.

 

[mpthomson]

But in many cases of unfair dismissal that breakdown will have been caused by the employer’s conduct, buy the employee still loses out in the sense that they no longer have a job. Thus the suggestions upthread that ASLEF should simply wait for the tribunal process to conclude don’t reflect the reality of the situation.

Completely understood, but it’s still a non-survivable incident in terms of employer/ employee (or vice versa) relationships in the vast majority of cases. Quite a few tribunals are found in the applicant’s favour because the employer didn’t follow its own policy rather than them not being right to dismiss, I’ve overseen a couple where the judge found in the applicant’s favour but awarded no compensation because the applicant’s actions led directly to their dismissal (and the judge stated that clearly in their ruling) but site based HR didn’t follow policy.

So ASLEF still needs to wait…

 

[43066]

They still should wait however…

In your opinion perhaps - I can see why the ASLEF members concerned might have a different view.

 

[mpthomson]

In your opinion perhaps - I can see why the ASLEF members concerned might have a different view.

Most people don’t fully understand how they work including potential outputs and what that actually means in reality (that’s not a value judgement, there’s no real reason why you should/would unless you have personal experience or interest in them). I’d be interested to know what’s been explained to the drivers by the union on they sense.

Given what we do know I suspect it’s highly unlikely that the tribunal will order reinstatement if the applicant is found for, it’ll rest solely on whether HT followed its own processes or not.

 

[43066]

Given what we do know I suspect it’s highly unlikely that the tribunal will order reinstatement if the applicant is found for, it’ll rest solely on whether HT followed its own processes or not.

But the industrial action is presumably intended to achieve reinstatement irrespective of the tribunal result - that’s surely the whole point!

 

[Killingworth]

But the industrial action is presumably intended to achieve reinstatement irrespective of the tribunal result - that’s surely the whole point!

Being realistic, whatever the original rights and wrongs, it's highly unlikely the individual can now be reinstated into their former role and duties. What's more their employability elsewhere in similar roles may be impacted.

The comparative cost to Hull Trains of agreeing a financial settlement to remove the individual from their pay roll against withstanding further strikes needs tempering with the unquantifiable impact it's having on team morale. By getting so entrenched any offer of an acceptable alternative role within Hull Trains also seems unlikely.

 

[Recessio]

Being realistic, whatever the original rights and wrongs, it's highly unlikely the individual can now be reinstated into their former role and duties. What's more their employability elsewhere in similar roles may be impacted.

I'm not in the industry, so I don't know much about railway hiring, therefore this may be a naive question. But if a tribunal finds that an employee was wrongly terminated and could be reinstated, why would that harm their future employability in a similar role with a different company?

 

[greatkingrat]

Because the railway industry is a very small world, and any potential employers will have marked the driver down as not worth the trouble, rightly or wrongly.

 

[styles]

I'm not in the industry, so I don't know much about railway hiring, therefore this may be a naive question. But if a tribunal finds that an employee was wrongly terminated and could be reinstated, why would that harm their future employability in a similar role with a different company?

Employment tribunal documents are public (https://www.gov.uk/employment-tribunal-decisions). Assuming operating companies do cursory background checks, the name will pop up.

Now, even if the employee wins the tribunal, there will be conscious bias from some, and unconscious bias from most. A lot of employers simply don't want people who get involved in disputes like this, especially if they clock that it resulted in significant strike action and national press coverage.

That's before even considering the 'small world' aspect @greatkingrat mentions.

Also not to mention that this driver has 20 years driving experience already. I don't know this driver's age, but there's a reasonable chance it's on the higher side, where conscious and unconscious bias comes into play. Unless Hull Trains/First take the driver back, it's not an amazing outlook.

There is also the fundamental safety issue here. The driver in question has had episode(s) of inattentiveness, or possibly even falling asleep while driving, depending which media you read, which will all come out in public at an employment tribunal. If you were hiring a train driver, would you want to hire one with a documented history of safety concerns of this nature? I suspect most people would say no, frankly.

Finally, the basic interview. "Why did you leave your last job?" It's not going to be as good an answer as, "I moved from London to Edinburgh so thought a job with LNER would suit my family life better."

That's not to say they won't stand any chance of getting another driving job, but there's a fair chance it'll make it more difficult.

 

[43066]

Being realistic, whatever the original rights and wrongs, it's highly unlikely the individual can now be reinstated into their former role and duties. What's more their employability elsewhere in similar roles may be impacted.

The comparative cost to Hull Trains of agreeing a financial settlement to remove the individual from their pay roll against withstanding further strikes needs tempering with the unquantifiable impact it's having on team morale. By getting so entrenched any offer of an acceptable alternative role within Hull Trains also seems unlikely.

I’m pretty sure there have been examples in the past of people being reinstated where this kind of action has taken place. The cost to the company of the action will be significant, and clearly the team morale has been damaged by the decision to dismiss this driver, for whatever reason, so it may well be that the company ends up taking that step.

 

[mpthomson]

I'm not in the industry, so I don't know much about railway hiring, therefore this may be a naive question. But if a tribunal finds that an employee was wrongly terminated and could be reinstated, why would that harm their future employability in a similar role with a different company?

That would depend on why the employee was dismissed, which will come out at the tribunal and can be reported on, it’s a matter of public record. I think it’s broadly clear from what’s been said but not the specifics. The number of successful tribunals for the applicant that end up in reinstatement is tiny, significantly less then 1% as the relationship between the two parties has almost invariably broken down irretrievably.

As an example I work in a safety critical industry (not rail) and had a case where an employee with a large amount of responsibility was dismissed as they had turned up at work smelling strongly of cannabis.

My organisation was found against as there was an issue with how the HR process was handed out, however the staff member received no payout as their conduct was held to be responsible for the dismissal and they had admitted in court that they smoked cannabis every night. More pertinent to this is that they had a very unusual name and it was reported in the National press at the time, meaning that any future employer would know what they had admitted.

The Judge actually warned the employee prior to the start (and being aware of the facts, including the admission of regular cannabis use) around this area. The staff member hasn’t been able to find employment in our specific industry since that time as a result as their name comes up quickly when Googled.

== Doublepost prevention - post automatically merged: 14 May 2025 ==

I’m pretty sure there have been examples in the past of people being reinstated where this kind of action has taken place. The cost to the company of the action will be significant, and clearly the team morale has been damaged by the decision to dismiss this driver, for whatever reason, so it may well be that the company ends up taking that step.

It’s extremely rare. It’s less than 1% of hearings where the employer is found against that end up with reinstatement as part of the judgement and it depends entirely on the circumstances ie if the employee has done what the employer alleges but the issue is that the HR process wasn’t correctly followed and it’s a safety critical setting and the level of sanction is reasonable for that occurrence then it’s almost certain that reinstatement would not be ordered.

No employer is going to reinstate a dismissed employee where it isn’t part of the judgement if and where the reason for dismissal was sound even if the process wasn’t.

 

[43066]

It’s extremely rare. It’s less than 1% of hearings where the employer is found against that end up with reinstatement as part of the judgement and it depends entirely on the circumstances ie if the employee has done what the employer alleges but the issue is that the HR process wasn’t correctly followed and it’s a safety critical setting and the level of sanction is reasonable for that occurrence then it’s almost certain that reinstatement would not be ordered.

No employer is going to reinstate a dismissed employee where it isn’t part of the judgement if and where the reason for dismissal was sound even if the process wasn’t.

I’m fully aware of why tribunals don’t tend to to reinstate, however we appear to be talking at crossed purposes; the whole point of the action in this case is to pressure the company to reinstate irrespective of the tribunal outcome. Ultimately that becomes a commercial/industrial relations decision.

Dismissal is only one of a range of possible outcomes to a gross misconduct charge - so your final sentence is demonstrably incorrect. I know someone personally who was dismissed for gross misconduct and then reinstated on appeal (with the sanction reduced to a final warning) without needing recourse to a tribunal following involvement of senior union officials.

 

[mpthomson]

I’m fully aware of why tribunals don’t tend to to reinstate, however we appear to be talking at crossed purposes; the whole point of the action in this case is to pressure the company to reinstate irrespective of the tribunal outcome. Ultimately that becomes a commercial/industrial relations decision.

Dismissal is only one of a range of possible outcomes to a gross misconduct charge - so your final sentence is demonstrably incorrect. I know someone personally who was dismissed for gross misconduct and then reinstated on appeal (with the sanction reduced to a final warning) without needing recourse to a tribunal following involvement of senior union officials.

No we aren’t at cross purposes. He isn’t going to be reinstated either by a tribunal or the company IF what is alleged to have happened has happened as the company found it had and that’s grounds for gross misconduct. Whether that’s the case is for the tribunal to confirm or not.

And my last statement isn’t demonstrably incorrect if the employee has already exhausted their appeal routes, which is clearly what I meant. That’s it as far as the company is concerned. In this instance there has been an appeal which was not upheld as far as I understand.

The Tribunal won’t hear a case that hasn’t been through an existing appeal process.

 

[43066]

He isn’t going to be reinstated either by a tribunal or the company IF what is alleged to have happened has happened as the company found it had and that’s grounds for gross misconduct.

I don’t see how that you can possibly conclude that unless you have inside knowledge. The company can reinstate if it wishes to, if it concludes the union action makes it worth doing commercially.

The tribunal’s decision isn’t relevant to the outcome of the industrial action - all a tribunal will do is confirm whether the decision to dismiss was within the range of reasonable responses open to the employer. It doesn’t follow that the employer can’t also choose to take a different approach.

 

[DJ_K666]

Our tribunal system is a disgrace, not fit for purpose and in recent years, does not address the law properly. I can fully understand why those affected would now look for other action rather than the inappropriate legal route.

Some examples:
1. Employee v TOC tribunal. Case initially won by employee. Reopened at appeal hearing on the basis of a blatantly false claim by an HR manager. At tribunal CCTV confirms otherwise and TOC's solicitor admits the HR woman's false claim was untrue and apologises for 'misremembering'. TOC goes on to win case based on the basis of further new claims. Case later had to be resolved outside of tribunal at the High Court who expressed utter shock at the goings on at the employment tribunal service.

2. Employee v TOC tribunal. Employee sacked for not taking a ticket machine out. At tribunal company claims employee was lazy and all the ticket machines were working fine. They also claimed no-one had ever said "don't take a machine, they're broken". On day three of the tribunal, a covert audio recording was produced, of the HR Manager with a Conductor Manager talking in the appeal meeting saying "well, all the machines were broken, and... you know, we were telling them not to take one". Judge refused to accept the audio evidence because it was covertly recorded - even though it exposed clear evidence of perjury and an absolute intent to pervert the course of justice.

Iirc, Covert recordings cannot be used as evidence. If you produce a transcript which matches word for word and the employer challenges it, can the judge ask for the recordings? It might have changed since I read that though. And it was something to do with consumer law if you're on the phone with a company, so might be different

 

[mpthomson]

Iirc, Covert recordings cannot be used as evidence. If you produce a transcript which matches word for word and the employer challenges it, can the judge ask for the recordings? It might have changed since I read that though. And it was something to do with consumer law if you're on the phone with a company, so might be different

You’re correct, they still can’t. Works either way whether employee or employer. We’ve had incidences of employees recording discussions on phones etc and tribunals have never allowed it as evidence.

 

[DJ_K666]

Thanks for the clarification. Do you know if they transcript thing is legal?

 

[Clarence Yard]

No, it isn’t. It is inadmissible as evidence.

 

[43066]

If the company has dismissed due to a found safety critical issue then they aren't ever going to reinstate as they've then fundamentally given carte blanche for anyone else to do it as well, without fear of dismissal due to the precedent set by the reinstatement. It's that simple and it's not going to happen.

This is just a statement of your own opinion. As noted above, train operating companies can and do reinstate people - I’ve known it happen - so there is no basis on which you can say “they aren’t ever going to reinstate”. I’m not sure why you keep pressing the point, and I’m afraid sitting through a few tribunals in a different industry doesn’t mean anything.

The tribunal proceedings are incidental to the industrial action, in any case.

 

[Mag_seven]

I think this is a good point to suspend discussion on this particular case pending further developments.

In the meantime I've split off some of the posts that were discussing the effectiveness or otherwise of industrial tribunals in general to this thread:

Are Industrial Tribunals fair and effective?

Moderator note - split from: https://www.railforums.co.uk/threads/hull-trains-strike-over-dismissal.282862/ Iirc, Covert recordings cannot be used as evidence. They can’t, and that’s another big weakness with the tribunal system, especially when it comes to bullying or false dismissal...

www.railforums.co.uk

 

[greatkingrat]

Are the ASLEF strikes at Hull Trains still going on or have they been suspended? HT appear to have run a full service every day since Monday 4th August which doesn't seem possible if they are purely relying on managers. The recent ballot to extend the industrial action was only passed 17-15, so are some drivers coming back to work?