Misuse of Spouse travel Pass

[najaB]

Has it really taken 'a couple of years' to inform / alert / warn the OP that something was amiss? If so there is something fundamentally wrong with the system.

We know that the misuse of the pass occurred over a couple of years, we don't know how long the monitoring has been in place, nor if it's continuous for all passes or based on random sampling.

 

[Bletchleyite]

I still feel uncomfortable about the process and outcome. Irrespective of the obligation on the OP, I cannot see that someone is now accountable for the actions of a spouse. That, I feel falls foul of our equality laws in the UK. The system for issuing spousal / partner / family passes might not have kept place with our social changes. If the railways needs an assurance that the passes are being used correctly they should have a process that obtains that assurance from the spouse.

I would certainly agree with this. The person to whom the pass is issued should be the one accountable, and given the nature of the wilful fraud a RoRA prosecution against that person (plus recovery of costs) is surely what should happen. Or just something as simple as it being valid only after 0930, as this would weed out most commuting anyway.

 

[najaB]

Or just something as simple as it being valid only after 0930, as this would weed out most commuting anyway.

That, plus make the spouse/partner sign and return a copy of the terms before the pass is issued. Then the requirement to make them aware of the terms has been met, and any subsequent misuse is 100% on them.

 

[Tazi Hupefi]

I wonder how this system works? I say that because in the very first post, the OP told us;


Has it really taken 'a couple of years' to inform / alert / warn the OP that something was amiss? If so there is something fundamentally wrong with the system. At the very least, I would have thought that RDG would have put a process in place to investigate at the earliest possible stage and withdraw the pass if they were unhappy. Of course, some of these discussions / investigations might have taken place - we don't know - and if so and the OP was warned, he wouldn't have a leg to stand on. But he says that he was unaware, so we have to accept that.

I still feel uncomfortable about the process and outcome. Irrespective of the obligation on the OP, I cannot see that someone is now accountable for the actions of a spouse. That, I feel falls foul of our equality laws in the UK. The system for issuing spousal / partner / family passes might not have kept place with our social changes. If the railways needs an assurance that the passes are being used correctly they should have a process that obtains that assurance from the spouse.

It would pay the OP to have this tested (perhaps on a no win, no fee basis) at an Employment Court. He still has that avenue available to him.

Good luck finding a no win, no fee arrangement for employment matters! Most claims are unrepresented for a reason!

I see no issue with the data analysis / collection perspective. As I've advised before in other areas, it's perfectly normal and acceptable to lull people into a false sense of security, and build up a picture over time, which strengthens the case for proving fraud (or gross misconduct etc). At the end of the day, the spouse was clearly in severe breach of the conditions of use. I actually find it reassuring in some ways that "normal" passengers and holders of this sort of pass are treated in a similar manner when it comes to enforcement.

I predicted that this case could only ever result in dismissal quite correctly. The TOC had clearly formed the view that the employee was responsible for the actions of the spouse/partner, and as the fraud/irregular use was an obvious fact, the TOC was always going to dismiss.

The issue is not that a fraud occurred, but that the TOC had a potential fundamental misunderstanding of liability.

Considering the concept of vicarious liability in a traditional sense within employment, if an employer can show that they took steps as were reasonably practicable to prevent the employee from doing the discriminatory act, the employer cannot be held responsible for the actions of their employee(s).

It follows, logically, that similar principles and conclusions could apply in this case, (although vicarious liability doesn't strictly apply). An Employment Tribunal, in my view, would award compensation or reinstatement (rarely) if the employee meets all of the below:

1) Has a good track record in his job, with no previous disciplinary issues;
2) Demonstrates that on the balance of probability that they conveyed the conditions of use to their spouse, and the consequences of misuse, and occasionally took action to ensure some level of compliance. Possibly supported by a witness statement from the spouse. If the employee did not do this, the case is doomed.
3) Has no travel pass misuse themselves.

The ET is likely to be somewhat dubious, however, so I don't rate the chances unless there is good evidence showing everything realistically possible to control the use of the pass was done.

It has some parallels to car insurance offences. You give your wife the keys to your car and let her drive. She is then stopped and found to be uninsured. She is prosecuted.
However, the police can (and would) also prosecute you for "permitting" the use of the car whilst she was uninsured. You are liable for ensuring (and largely evidencing) that you met your obligation to take reasonable steps so as to verify insurance was held prior to handing over the keys.

There may well be a case for a civil claim against the spouse/partner.

 

[HSP 2]

In mess #9 (on the 8/12/20) it is mentioned that where the offender is a spouse etc. the penalty will apply to the offender only. So is this working within the guide lines?

 

[najaB]

The ET is likely to be somewhat dubious, however, so I don't rate the chances unless there is good evidence showing everything realistically possible to control the use of the pass was done.

I agree with your post, apart from this. As I understand it, the obligation placed on the OP was to ensure that the spouse was aware of the conditions under which the pass was to be used. Based on what they posted, they fulfilled that obligation both when the pass was initially issued, and then by checking if the spouse was purchasing tickets at the point that the relationship broke down. I don't believe the terms of the pass required them to ensure that the actual use of the pass was in compliance with the terms.

Happy to be corrected, of course.

 

[AlterEgo]

Sounds like another thread of conjecture without actually having the facts.

Unfortunately, as @357 has mentioned, some other facts came to light before the hearing that we are not privy to in the thread.

We can only provide good advice when we have the facts, but it's worth remembering when going off on a tangent about How Terrible Everything Is, that many posters seeking help in this part of the forum conceal the whole truth from public view.

 

[father_jack]

A thing that I've noticed only very recently within my TOC is that there has been a directive for gateline staff to ensure that employee smartcards are touched in and out by the holder, and for gate staff not to use their work smartcards to operate the gate even for colleagues (or spouses/"partners") that they might know.......

(Snipped)

In case anyone reading this is interested - the original report was an automated system that Rail Delivery Group have that monitors all staff/nominee smart cards. The card was flagged as it was being used on the same trains every weekday to and from London.

On reflection I don't think that any system could be that precise, maybe between XX:00 and XX:05 at origin and after a say, 40 minute journey between XX:40 and XX:45 the card was noted being used regularly.

 

[MotCO]

On reflection I don't think that any system could be that precise, maybe between XX:00 and XX:05 at origin and after a say, 40 minute journey between XX:40 and XX:45 the card was noted being used regularly.

Surely, you only need to see the origin time. If it is consistently the same sort of time, it could relate to commuting, whereupon further information would be sought / checked.

It is possible that the 'GA system' may only have been introduced by RDG in the last 18 months or so, and again the frequency of use in these last 18 months may have triggered further enquries which then takes the scope back to over 4 years.

 

[Tallguy]

Many years ago (over 15) I lived with my then girlfriend Who was a driver on the District Line on the Tube. I worked in London and 5 days a week travelled at almost the same time each day in and out of London. Saved me a fortune but I do remember her telling me never to give the pass to anyone else to use.....

 

[43096]

I see no issue with the data analysis / collection perspective. As I've advised before in other areas, it's perfectly normal and acceptable to lull people into a false sense of security, and build up a picture over time, which strengthens the case for proving fraud (or gross misconduct etc). At the end of the day, the spouse was clearly in severe breach of the conditions of use. I actually find it reassuring in some ways that "normal" passengers and holders of this sort of pass are treated in a similar manner when it comes to enforcement.

I agree with the majority of what you say, but the idea of entrapment of an employee (or indeed their spouse) is a pretty nasty way of managing people. Better to nip it in the bud early, but if there is a repeat, then....

That said, we don't know if there were previous warnings given about this; the lack of interest from the union certainly suggest something else amiss too (they rarely fail to jump up and down about Brother X being mistreated).

 

[Tazi Hupefi]

I agree with the majority of what you say, but the idea of entrapment of an employee (or indeed their spouse) is a pretty nasty way of managing people. Better to nip it in the bud early, but if there is a repeat, then....

That said, we don't know if there were previous warnings given about this; the lack of interest from the union certainly suggest something else amiss too (they rarely fail to jump up and down about Brother X being mistreated).

That is not even close to entrapment! In any event, entrapment isn't even a defence available in law.

 

[357]

1. The use had been flagged by the system checking (I believe) six months use. The nominee then admitted to the revenue team that she had used it for 2 years. They were waiting at the destination specifically to stop her, following the report from RDG.

2. The information that was not shared with us was very substantial - and changed my outlook on the situation completely.

3. I still stand by my original thoughts that the union were very poor in this situation, whilst they thought it was a lost cause what I didn't like was the lack of interest once the OP said he wanted to try to keep his job - and when the OP approached the TSSA rep about it - the first thing he did was call the RMT rep and tell him "OP has been slagging you off behind your back"

4. I will remove the personal data from the RDG files and post later tonight - they can detect pass touch in/out to the second. Not hard to write an algorithm looking for misuse.

 

[matt_world2004]

Many years ago (over 15) I lived with my then girlfriend Who was a driver on the District Line on the Tube. I worked in London and 5 days a week travelled at almost the same time each day in and out of London. Saved me a fortune but I do remember her telling me never to give the pass to anyone else to use.....

Lu nominee passes can be used for commuting

 

[najaB]

2. The information that was not shared with us was very substantial - and changed my outlook on the situation completely.

That's unfortunate. The advice we can give is only as good as the information we are given.

 

[MikeWh]

In mess #9 (on the 8/12/20) it is mentioned that where the offender is a spouse etc. the penalty will apply to the offender only. So is this working within the guide lines?

That was extremely early on in the thread, before many of the facts were known.

 

[357]

I still feel the responsibility was with the spouse from what I know, however I can see why the company went after the employee when they discovered the other breaches of the terms and conditions regarding her eligibility to have the pass

 

[43096]

That is not even close to entrapment! In any event, entrapment isn't even a defence available in law.

Do try to see beyond who is posting and look at what is actually being said. I wasn't even talking about the law, but about a way of managing staff.

 

[Wuffle]

That is not even close to entrapment! In any event, entrapment isn't even a defence available in law.

Entrapment is a defense in law

The Entrapment Defense in Criminal Law Cases

What comprises the criminal defense of entrapment, based on coercion by a government official that goes beyond providing an opportunity to commit a crime?

www.justia.com

 

[Bletchleyite]

Entrapment is a defense in law

The Entrapment Defense in Criminal Law Cases

What comprises the criminal defense of entrapment, based on coercion by a government official that goes beyond providing an opportunity to commit a crime?

www.justia.com

In the US (the fact that it's spelt "defense" on that site should be a giveaway ).

 

[CentralTrainer]

There is no defence of entrapment in English law but it is considered to be an abuse of the process of the court for state agents to lure a person into committing illegal acts and then seek to prosecute him for doing so.

The House of Lords said that, although entrapment is not a substantive defence in English law, where an accused can show entrapment, the court may stay the proceedings as an abuse of its process or exclude evidence.

Where the actions of the state threaten the rule of law, it would be unfair to try the defendant. As a matter of policy, when a defendant has been treated so unfairly, the integrity of the criminal justice system depends on him not being tried at all. State-created crime is unacceptable and improper, and to prosecute in such circumstances would be an affront to the public conscience. The court has found that in these circumstances the ends do not always justify the means.

This is distinct from the situation in which an accused is given the opportunity to commit the crime that was his existing intent.

 

[Wuffle]

In the US (the fact that it's spelt "defense" on that site should be a giveaway ).

My bad
However I did find this article about English Law, perhaps the Supreme Court will set a precedent

https://onlinelibrary.wiley.com/doi/pdf/10.1111/j.1468-2230.1978.tb00800.x

One more preliminary observation must be made. Over the past few decades problems of entrapment have arisen in at least 12 reported cases before English courts. In some cases judges have condemned but done nothing about the pra~tice.~ In others sentences have been reducedYs policemen re~rimanded,~ and more recently some creative trial judges have extended the exclusionary rule to reach “ entrapment ” evidence. * This promising development aside, there is still no uniform judicial prohibition of entrapment practices.

 

[Tazi Hupefi]

My bad
However I did find this article about English Law, perhaps the Supreme Court will set a precedent

https://onlinelibrary.wiley.com/doi/pdf/10.1111/j.1468-2230.1978.tb00800.x

There is already plenty of case law. R v Loosely and R v Sang being the main.

The CoA also relatively recently ruled that ordinary members of the public are not capable of entrapment, except in very exceptional circumstances where the police or public body has encouraged or directed them to do so.

R v TL [2018] EWCA Crim 1821

Court of Appeal tacitly condones entrapment by conscientious vigilantes - 2 Bedford Row - Barristers Chambers

On 31st July 2018, the Court of Appeal handed down Lord Burnett CJ’s judgment in the case of R v TL [2018] EWCA Crim 1821[1], which was a successful appeal by the Prosecution to overturn a terminating ruling by the trial judge in Nottingham to stay a prosecution for abuse of process due to...

www.2bedfordrow.co.uk

 

[Haywain]

There was no entrapment in this case - the OP's spouse travelled to work using a leisure only travel pass without any encouragement. Taking what may appear to be a long time to identify misuse and take action is a separate matter to entrapment.

 

[najaB]

Taking what may appear to be a long time to identify misuse and take action is a separate matter to entrapment.

Indeed. There's a difference between entrapment and giving someone enough rope to make the noose.

 

[Haywain]

Indeed. There's a difference between entrapment and giving someone enough rope to make the noose.

And this case was more like providing the opportunity to put the noose in place!

 

[Horizon22]

Anyway back to the point on hand, this is certainly something TOCs are clamping down on quite heavily as I alluded to much earlier in the thread I am aware of two employees who lost their jobs in very similar circumstances, and one who was lucky to get away with only a severe warning after being up-front with their manager as soon as they knew what was going on. With smartcards becoming more prevalent, I suppose this case should remind all to be careful and ensure anyway whose partner has a pass to periodically remind them of rules, although I'm sure 99% wouldn't dream of abusing it.

 

[bramling]

Many years ago (over 15) I lived with my then girlfriend Who was a driver on the District Line on the Tube. I worked in London and 5 days a week travelled at almost the same time each day in and out of London. Saved me a fortune but I do remember her telling me never to give the pass to anyone else to use.....

LU rules are different, and I don’t believe they impose any limitations on what a nominee’s pass can be used for.

 

[ComUtoR]

Anyway back to the point on hand

I would say that after reading the point raised about eligibility; it tipped the balance in the TOCs favour for sure. Misuse by the spouse is one thing but getting a pass for someone who isn't eligible or is no longer eligible and not removed is a much more serious offence as it leans towards fraud.