Misuse of Spouse travel Pass

[Tallguy]

Most disappointing outcome. So you now have 3 options in my non legal view;

1. Appeal the decision. You will have a very limited time to do this so if you want to go down this route I suggest you refer to the company procedure handbook and lodge the appeal within the permitted time. You can then Get legal advice on your position and the conduct of the hearing process.

2. Employment Tribunal. You will almost certainly need a specialist employment lawyer for this, ideally one with railway industry experience. A firm has been mentioned on here previously. You may wish to contact them Or another firm.

3. Walk away and get on with your life.

I suggest you enquire about the reference status and ask what would be written in a reference should one be requested for you which it may well be when you start a new job. Once you have your dismissal in writing you can see what state benefits you can get, register as unemployed (which can lead to access to other services such as careers advice, free training courses etc) and get free prescriptions (I think you still get free prescriptions) as well as other stuff. If you have a mortgage or income protection policy or similar you can see if it covers all forms of non-voluntary unemployment. If you are covered you can instigate a claim if you wish.

I feel you were badly advised by your union rep but I also feel you made a number of errors yourself, particularly with this whole resignation thing And not securing legal advice from the union Solicitor or other legal advisor. All of us were routing for you, including me, the outcome isn’t what we all hoped for, but you have my thoughts above and I hope they are of some use to you. And that is what they are - thoughts - I’m no Lawyer So don’t take them as legal advice!

There will be other jobs in the rail industry that you may be able to apply for, I do not believe the dismissal will bar you from all of them. Otherwise, maybe look at something else career wise. There are plenty of short term jobs around in retail and distribution but they won’t pay what you were on as a driver. However, they may act as a financial bridge until you get something better.

Finally, there is the matter of the £8k. As the pass was ultimately your responsibility you may find your former employer now files a claim in the civil court to recover the money. I don’t know if what has been done with the pass constitutes a criminal activity or if any law has been broken, if it has then either you or your spouse may be prosecuted depending upon how vindictive your former employers are feeling. I’m no lawyer but if I was in your position, I wouldn’t be making any voluntary re-payments to your former employer as they have dismissed you. If the £8k is mentioned on your reference then that may change this position. Should they threaten legal action to recover the £8k or if you face criminal prosecution, I suggest you seek good legal advice.

I’m no Lawyer so this is very much layman’s talk and it should not be construed as advice or an Assesment of your position, but I hope you find it gives you some ideas and wish you all the best in whatever you decide to do.

This is also my final post on this thread.

 

[AlterEgo]

Really can’t thank the guys here enough, you all stood by me all through... I bet you would fight for me personally if you all can.

Didn’t get anything about the money however i have started making extra move just to do the best I can to still pay the money back in my name, this way I atleast have records of how I really intended and offer to pay back base on my clean and reputable history with the company to remedy the actions which the company felt I haven’t done enough to avoid

Do not pay them any money. You did not defraud the company; your wife did. You don’t owe them anything. You’ve been dismissed, and unless you are reinstated (very unlikely I’m afraid) you will receive no credit for trying to pay off your wife’s debt at all and will only end up poorer.

 

[Titfield]

If you do take legal advice, one point you may wish to discuss with your lawyer is "did the company prejudge the issue prior to the hearing?" as that can be held to be unfair.

My interpretation of some of the points you have made make me think that they had already decided to terminate your employment and they did not consider fully all the points you made at the hearing.

Only a thought.

 

[MissPWay]

OP: I’m sorry it turned out the way it did, and hope you manage to find a job very soon.

I feel you were badly advised by your union rep...

The Union Rep who deals with this kind of thing probably semi-regularly and had the experience to say, “You are unlikely to win this (which is what happened) so resignation is a clean break and probably the best and easiest option for you.” That union rep?

The union rep that had to compete with the “advice,” on here that the OP go full Erin Brockovich and represent themselves at a hearing? That union rep?

 

[ukkid]

Hanson. Now take everything to an employment solicitor and see if there are grounds for an appeal or unfair dismissal.

I had a nonsense situation at a former workplace where I was accused of breaching my contract and presented with further new accusations when I filed a grievance. I thought I was going crazy. It was only when I went to an employment solicitor for free initial advice, that they pointed out some terms were unfair and not enforceable whilst with others the firm were misreading or misinterpreting the onus on me. I had grounds for constructive dismissal if I left and even claims for things such as 'hurt feelings". Funnily enough I was advised not to first show evidence I had obtained to disprove an accusation but should instead ask them to clarify what they meant by "no evidence" and "keeping an eye on these incidents (only one) being genuine. I don't recall the exact reasoning given but it was along the lines of getting my employers to reveal my word was suspect and that any request for further evidence would be instrusive and unreasonable. My scenario was different to yours and of course I don't know what an expert will find in your case. I don't see what you have to lose though.

 

[Horizon22]

Don’t forget when you appeal it will be a different manager who will take it, don’t know what job you do but you could get demoted if you are lucky

Normally appeals go to even more senior managers too. But they will stake advice from HR of course. And GM hearings are already held by someone relatively senior - normally someone 3-4 levels up from a dispatcher/guard etc.

Anyway, Hanson I am sorry to hear that the outcome was a summary dismissal, which is of course the worst outcome after deciding to go through with the meeting. You'd now need to think if you believe it is worth appealing and there are other solid circumstances you can think of that may persuade a senior manager.

I don't have anything further to add on this thread, but it is another option you need to carefully weigh up.

 

[scrapy]

Whilst the OP may wish to pursue an employment tribunal, I feel they must get legal advice before doing this as unfortunately it seems like the employer has followed a due process in this and whilst the outcome isn't good for the OP, I can't see any reason why an employment tribunal would find in their favour.

Purely from a perspective of the forum being able to help others in the future I would ask the OP what their job role is? If you had been a driver I actually think the outcome would possibly have been different. Despite the outcome I think the advice of the forum to go ahead and not resign was the right one. At many TOCs the outcome could be different. At least you know the outcome and will not spend time in the future mulling over what might have been and whether you made the right decision. I also don't feel you've got a lot to lose by appealing. The chances may be slim but as it will be heard by fresh faces you may get lucky. It also may be worth still asking if a resignation could still be accepted even at this very late stage as again I've known it to have been accepted.

I wish the OP well in the future, I think you have been unlucky with the circumstances and hope you can bounce back from this.

 

[WesternLancer]

There are plenty of short term jobs around in retail and distribution but they won’t pay what you were on as a driver. However, they may act as a financial bridge until you get something better.

OP Makes it clear in post #231 that they are not a driver (this is a red herring stated up thread by a forum member who seemed to assume it but then later apologised in post #195 when indicated it was not the case)

OP says "I am no a train driver and my position isn’t expensive to replace"

If you had been a driver

OP is not a driver however.

As far as we know the OP may be in a role like gateline assistant - easily replaced by management sadly, who maybe want to 'make an example' or show no flexibility / discretion.

I hope @Hanson can go to Appeal

 

[MotCO]

1. Appeal the decision. You will have a very limited time to do this so if you want to go down this route I suggest you refer to the company procedure handbook and lodge the appeal within the permitted time. You can then Get legal advice on your position and the conduct of the hearing process.

2. Employment Tribunal. You will almost certainly need a specialist employment lawyer for this, ideally one with railway industry experience. A firm has been mentioned on here previously. You may wish to contact them Or another firm.

You may find that yuou have to exhaust all your internal processes before you can take the case to an Employment Tribunal. Your Union Rep should be able to advise.

You may also what to think about what you want out of this. You may want to get your job back. Or, if you feel that relations with your manager have reached rock-bottom, or you think your managing is gunning for you, you may not want to return to work in that role, but maybe other roles could be available. Or maybe you just want a 'clean' reference. Thinking about what you want will help determine your next steps.

 

[Mak1981]

Personally I would now put in an appeal, again nothing to lose, get proper advice how to do this, I would be going along the lines that the sanction is unreasonably severe as it was not your direct actions that led to the situation, it was the actions of "someone" who's actions you were "responsible" for, I would be pushing that point, yes if it was your direct actions maybe maximum sanction was deserved but it wasn't your actions so at least a step down from that would not be unreasonable

 

[Titfield]

Personally I would now put in an appeal, again nothing to lose, get proper advice how to do this, I would be going along the lines that the sanction is unreasonably severe as it was not your direct actions that led to the situation, it was the actions of "someone" who's actions you were "responsible" for, I would be pushing that point, yes if it was your direct actions maybe maximum sanction was deserved but it wasn't your actions so at least a step down from that would not be unreasonable

The term often used is that the sanction was disproportionate given the circumstances.

 

[Mak1981]

Also to use an example, I have a company credit card, if I misuse it I fully expect to be sacked, but if I misuse it I don't think it would be reasonable for my boss to also get the sack even if he had responsibility of making sure I knew where and when it could be used, yes maybe some form of disciplinary action for poor of oversight but I don't think anyone would reasonably expect him to get the sack

 

[Bletchleyite]

Also to use an example, I have a company credit card, if I misuse it I fully expect to be sacked, but if I misuse it I don't think it would be reasonable for my boss to also get the sack even if he had responsibility of making sure I knew where and when it could be used, yes maybe some form of disciplinary action for poor of oversight but I don't think anyone would reasonably expect him to get the sack

I don't think it's fair at all for the member of staff to be responsible for another person's pass; what should be happening here is an RoRA prosecution (if possible) against the OP's wife for travelling without a valid ticket (while the pass appeared valid it wasn't because it was being misused). However, that is probably one for another thread to delve into it further, and it doesn't in the context of this thread matter if it's fair, just that those were the terms of the contract.

 

[WesternLancer]

I don't think it's fair at all for the member of staff to be responsible for another person's pass; what should be happening here is an RoRA prosecution (if possible) against the OP's wife for travelling without a valid ticket (while the pass appeared valid it wasn't because it was being misused). However, that is probably one for another thread to delve into it further, and it doesn't in the context of this thread matter if it's fair, just that those were the terms of the contract.

Yes, it does raise a broader issue about the extent to which staff can be responsible for the actions of dependents / spouses who hold passes. This issue must arise form time to time, but when you consider that children / teenagers have access to them - some of whom just might be a bit 'wayward' it's a tricky area. One of my schoolmates had a pass by virtue of his step father's railway employment, and he did not get on with his step father at all well. As a 'hot headed teenager' I doubt very much he'd have thought too far or cared very much about the consequences for his step father if he abused the priv pass he, as a dependent benefitted from, looking back on it.

 

[najaB]

I don't think it's fair at all for the member of staff to be responsible for another person's pass... ...and it doesn't in the context of this thread matter if it's fair, just that those were the terms of the contract.

Especially since, if the OP's statements are taken at face value he did what any reasonable person would do: informed her of the correct use of the pass when she was given it, and checked that she was buying her own tickets when the relationship hit the rocks.

It would be interesting to know exactly what the contract states the OP's responsibilities were.

 

[Realfish]

I'm really sorry to hear that things went badly, but maintain that the OP was right not to resign. He now has the opportunity to exhaust his internal processes (MotCO #249) by first of all appealing and then if necessary taking the matter to an Employment Tribunal.

Mak1981 #250 echoes some of my own concerns about the way in which the TOC has handled this. In the OP's early post in which he copied us the policies the TOC is using to reach a decision, I note that under 'Rules of Conduct' Para 4.10.4 says:
'Ensure that spouses, partners and family members only use the travel facilities they are entitled to.'

However the terms and conditions imposed by the RDG (RST Conditions of Issue and Use) say this:
3.2. The primary cardholder (usually the employee, retired employee or widow(er) is responsible for ensuring that eligible family members are aware of these conditions of issue and use, especially children aged under 16.
3.3. The primary cardholder (usually the employee, retired employee or widow(er) must ensure that they and family members have read the Rail Staff Travel Restrictions. These are published on the RST website and updated at least twice per year. During periods of travel disruption updates may be more frequent.

Note that the RDG's T&C's require family members to be made aware of the conditions, but do not place on the employee a duty to effectively monitor the use of the pass issued to their partner (unless there are further obligations detailed elsewhere (anyone?)). If the TOC have added this requirement by gold plating the RDG's T&Cs, and therefore hold the employee accountable for the actions of their spouse, I find it extraordinary. It is arguable that those requirements might even be in breach of our current equality / human rights legislation - this is important in that employment terms may not breach the law, even if they are agreed to and accepted by the employee. Any dismissal, as a consequence, would be automatically found to be unfair. It is unfortunate that the OP's union rep has not escalated this to their legal advisers - it is an important and arguable issue.

I also take issue with other observations in the investigation / fact-find:

'It is evident that by avoiding the fares that were applicable [the OP] and his wife have avoided £8350.60 since January 2019. [TOC] have been defrauded of this amount.
Unless there is evidence that the OP and his wife have colluded, there can be no question that the OP has defrauded his employer of any money.

...[The OP] had travelled with his wife on 26/09/20 and 16/10/20...
Unless there is a context elsewhere in the report, so what?

As a next step I would ask the union to support you in an appeal and request that the matter be escalated to their legal advisers on the basis that the disciplinary panel has been misinformed and that the duty that has been placed on you is unfair, unreasonable and outside of the requirements of the RDG's T&C's.

Finally, do you (OP) know how this matter cam to the attention of the TOC. How and when were you made aware? Where you previously warned that there may be an issue?

 

[WesternLancer]

I'm really sorry to hear that things went badly, but maintain that the OP was right not to resign. He now has the opportunity to exhaust his internal processes (MotCO #249) by first of all appealing and then if necessary taking the matter to an Employment Tribunal.

Mak1981 #250 echoes some of my own concerns about the way in which the TOC has handled this. In the OP's early post in which he copied us the policies the TOC is using to reach a decision, I note that under 'Rules of Conduct' Para 4.10.4 says:
'Ensure that spouses, partners and family members only use the travel facilities they are entitled to.'

However the terms and conditions imposed by the RDG (RST Conditions of Issue and Use) say this:
3.2. The primary cardholder (usually the employee, retired employee or widow(er) is responsible for ensuring that eligible family members are aware of these conditions of issue and use, especially children aged under 16.
3.3. The primary cardholder (usually the employee, retired employee or widow(er) must ensure that they and family members have read the Rail Staff Travel Restrictions. These are published on the RST website and updated at least twice per year. During periods of travel disruption updates may be more frequent.

Note that the RDG's T&C's require family members to be made aware of the conditions, but do not place on the employee a duty to effectively monitor the use of the pass issued to their partner (unless there are further obligations detailed elsewhere (anyone?)). If the TOC have added this requirement by gold plating the RDG's T&Cs, and therefore hold the employee accountable for the actions of their spouse, I find it extraordinary. It is arguable that those requirements might even be in breach of our current equality / human rights legislation - this is important in that employment terms may not breach the law, even if they are agreed to and accepted by the employee. Any dismissal, as a consequence, would be automatically found to be unfair. It is unfortunate that the OP's union rep has not escalated this to their legal advisers - it is an important and arguable issue.

I also take issue with other observations in the investigation / fact-find:

'It is evident that by avoiding the fares that were applicable [the OP] and his wife have avoided £8350.60 since January 2019. [TOC] have been defrauded of this amount.
Unless there is evidence that the OP and his wife have colluded, there can be no question that the OP has defrauded his employer of any money.

...[The OP] had travelled with his wife on 26/09/20 and 16/10/20...
Unless there is a context elsewhere in the report, so what?

As a next step I would ask the union to support you in an appeal and request that the matter be escalated to their legal advisers on the basis that the disciplinary panel has been misinformed and that the duty that has been placed on you is unfair, unreasonable and outside of the requirements of the RDG's T&C's.

Finally, do you (OP) know how this matter cam to the attention of the TOC. How and when were you made aware? Where you previously warned that there may be an issue?

I think these points are very well made in your post here.

I would have thought, however, that the TOCs HR person would advise the manager of these sorts of issues ahead of the disciplinary - but we can't know those circs - eg did the Manager check this with HR properly? did HR consider the facts as presented by the OP etc? A 'gung-ho' manager may well not have sought adequate advice from HR ahead of the disciplinary - which is why the next steps suggested are important, and worth taking IMHO. Mind you, I can see that rail unions will have had previous experience of these sorts of situations too.

 

[Haywain]

There can be no question that the OP has defrauded his employer of any money.

The document you have quoted does not say that the OP has defrauded his employer, it says the employer has been defrauded - this may be detail, but there is a very important difference.

[TOC] have been defrauded of this amount.

 

[AlterEgo]

You may find that yuou have to exhaust all your internal processes before you can take the case to an Employment Tribunal. Your Union Rep should be able to advise.

You may also what to think about what you want out of this. You may want to get your job back. Or, if you feel that relations with your manager have reached rock-bottom, or you think your managing is gunning for you, you may not want to return to work in that role, but maybe other roles could be available. Or maybe you just want a 'clean' reference. Thinking about what you want will help determine your next steps.

Very good advice.

I'd gently suggest to the OP that:

Reinstatement is very rare. But there are options for pursuing an appeal and going to a tribunal. There is a small risk of having to pay the employer's costs after tribunal but this again is rare, and usually only for people who abuse the process or file spurious claims, neither of which apply to the OP.

The other option of course is to simply walk away and find a job elsewhere; this is often the best tonic and allows you to make a clean break, especially if you have domestic dramas elsewhere. Employment disputes are stressful.

Good luck in finding a solution.

 

[Realfish]

The document you have quoted does not say that the OP has defrauded his employer, it says the employer has been defrauded - this may be detail, but there is a very important difference.

The document says, 'It is evident that by avoiding the fares that were applicable [the OP] and his wife have avoided £8350.60 since January 2019. [TOC] have been defrauded of this amount.

It follows, therefore, that the TOC alleges they have been defrauded of £8350.60 by the actions of 'the OP and his wife'. There is no difference whatsoever.

 

[Haywain]

The document says, 'It is evident that by avoiding the fares that were applicable [the OP] and his wife have avoided £8350.60 since January 2019. [TOC] have been defrauded of this amount.

It follows, therefore, that the TOC alleges they have been defrauded of £8350.60 by the actions of 'the OP and his wife'. There is no difference whatsoever.

There is a difference but it is subtle.

 

[AlterEgo]

The document says, 'It is evident that by avoiding the fares that were applicable [the OP] and his wife have avoided £8350.60 since January 2019. [TOC] have been defrauded of this amount.

It follows, therefore, that the TOC alleges they have been defrauded of £8350.60 by the actions of 'the OP and his wife'. There is no difference whatsoever.

I think this is clumsy wording by the TOC. They don’t seem to really suspect the OP actually did any of the defrauding himself as shown by their charges. They suggest that the wife did it and the OP was negligent in not withdrawing the pass or taking reasonable steps to check its use.

 

[theironroad]

OP Makes it clear in post #231 that they are not a driver (this is a red herring stated up thread by a forum member who seemed to assume it but then later apologised in post #195 when indicated it was not the case)

OP says "I am no a train driver and my position isn’t expensive to replace"


OP is not a driver however.

As far as we know the OP may be in a role like gateline assistant - easily replaced by management sadly, who maybe want to 'make an example' or show no flexibility / discretion.

I hope @Hanson can go to Appeal

To be clear, it was me who had made the initial (incorrect) inference that Hanson was a driver , but will apologise again for any confusion I caused anyone reading the thread.

It really shouldn't make any difference what grade or job a person is doing , whether the outcome would have been any different we won't know.

Thanks for the updates Hanson and I really do feel for your situation.

I would appeal, you've nothing to lose and an appeal on the railway is an automatic if you want to, there's no need for 'grounds for an appeal!' as such and it will be heard by a different manager. However, it does sound like that the company have decided the outcome. I've never really believed that the railway operates a fair and just system when it comes to disciplinary issues and hearings are often just the cogs turning as hr and local managers have decided the outcome they want before anyone sits down . Maybe not everytime, but it's not an independent process but also very hard to prove wrongdoing.

It does sound from the write up you've given about the hearing that they really weren't interested in a mitigating circumstances and it was all about your responsibility and the black and white of the policy.

I can only hope that those railway managers sitting in judgement have perfect and full knowledge of every action their partner /kids performs when using their passes, because while it is a good benefit, it is also a minefield of regulations. It does seem they are very virtuous and would never make a mistake or have the benefit of hindsight.

Personally, I think repayment of the fares they have judged to have been avoided, a monetary fine and withdrawl of all travel facilities for a couple of years would have been a more suitable sanction than dismissal.

Theres no harm taking a free employment law legal session, but as it seems you didn't have your union backing at this stage, it seems unlikely they will provide a solicitor or finance for going to a tribunal. The union's won't back any case and normally these days want to have some probability they are going to win before starting. Personally I'd not be too hopeful of success in a tribunal if this was me but I am NOT a lawyer but as I say, a free advice session might be worth it. Thompson's are often cited as specialist employment lawyers but they are very interconnected with the rail union's and as I say getting finance might be an issue .

In the meantime, you could try one of the various agencies that supply staff to railways , though not sure if they'd be able to post you to a TOC you'd be dismissed from so depends where you are and other companies nearby. Alternatively, you may never want to see a train or rail again in your life!

Good luck.

 

[221129]

I don’t know if what has been done with the pass constitutes a criminal activity

It is but that would be against the wife I suspect.

 

[theironroad]

About ten days since an update here.

Just wondering how the OP is getting on and whether appealing or seeking tribunal?

 

[357]

Since it seems doubtful the OP will post here again, or contact me again, I will post an update.

Some further things that were not in this thread came to light just before the hearing.

He got sacked in the hearing - and did appeal however the appeal manager upheld the original verdict.

The company agreed to settle out of court for the money to be paid back.

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.

 

[najaB]

Since it seems doubtful the OP will post here again, or contact me again, I will post an update.

Some further things that were not in this thread came to light just before the hearing.

Thanks for the update. Without going into details, did those things materially change the story that had been presented?

 

[Tazi Hupefi]

I wonder whether this is the same smartcard system that Greater Anglia have been using to monitor patterns etc as discussed in the other forum thread.

 

[Realfish]

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.

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

I was totally unaware of this and I was shocked.
This has been going on for couple of years now

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.

 

[Titfield]

That thought had gone through my mind.

I think it is highly probable that their data analysis has been somewhat enhanced hence the postings on this forum.