'Unfairly dismissed' NR worker awarded £90,000 by Tribunal

[contrex]

A Network Rail employee, Lewis Smith, suffered from 'shy bladder syndrome'. This left him too nervous to urinate when he was called in for a random check. He told NR that he was not trying to dodge it and even offered to carry out a blood test - but still he was fired for refusing to take part. He had this trouble going to the loo at social occasions, and was later diagnosed with paruresis by his GP. Southampton Employment tribunal found that NR's decision to sack him was 'flawed and ill-considered', and that its own procedures confirmed he had not attempted to evade drug testing. The Tribunal ordered reinstatement, and when that was not forthcoming, awarded Mr Smith £89,861, which includes a charge for NR's non-compliance. The award was made up of £58,886 for compensation, £27,300 as an additional award, and £3,675 as a basic award.

I myself have had some of the symptoms of paruesis, for example difficulty in 'peeing to order', and also when at a public urinal when other men are present, in fact I routinely choose to go in a cubicle for this reason. I am sure I'm not especially unusual. A nurse once helpfully turned on a tap and that helped.

Tribunal judgment here:

https://assets.publishing.service.gov.uk/media/61a751448fa8f5037d67b7c2/Mr_L_Smith_v_Network_Rail_Infrastructure_Ltd_-_1400680.2020_-_Reserved_Judgment.pdf

The Tribunal is satisfied that the determination that the Claimant was
unfairly dismissed by NR was taken after careful consideration of
paramount importance of health and safety in the railway industry and did
not substantially undermine either the integrity of the policy or public
confidence in NR's and Sentinel's health and safety procedures and that
any order of reinstatement made in these proceedings after due and
appropriate consideration of the relevant issues would not do so...

 

[STINT47]

On reading this I would agree that it would class as unfair dismissal, an alternative way of testing was available and an employef is required to make reasonable adjustments for medical conditions.

Two other things come to mind.

This does show that you can do sacked unfairly on the railways, the unions whilst powerful aren't invincible or all powerful.

This fine will be ultimately paid for by the taxpayer. Thank you Network Rail for spending my money this way.

 

[Haywain]

Thank you Network Rail for spending my money this way.

You won't miss a tiny fraction of a penny.

 

[pdeaves]

If NR declined to reinstate Mr Smith, does that suggest there was some other underlying issue?

 

[LucyP]

It wasn't a disability discrimination case, so the concept of reasonable adjustments does not come into it.

 

[AlterEgo]

This does show that you can do sacked unfairly on the railways, the unions whilst powerful aren't invincible or all powerful.

But it doesn't appear this gentleman was in a union, as I don't see any statement by his union on the matter nor were they mentioned at all.

 

[deltic]

If NR declined to reinstate Mr Smith, does that suggest there was some other underlying issue?

Does suggest that some manager wanted to get rid of him for some reason. A number of years ago I supported an individual (outside the rail sector) through a disciplinary process where it was clear there was no grounds for disciplinary action but clear grounds for redundancy. I don't know if the manager thought they were saving the company money, but in the end the compensations payments made to the individual were higher than any redundancy package.

 

[bramling]

Does suggest that some manager wanted to get rid of him for some reason. A number of years ago I supported an individual (outside the rail sector) through a disciplinary process where it was clear there was no grounds for disciplinary action but clear grounds for redundancy. I don't know if the manager thought they were saving the company money, but in the end the compensations payments made to the individual were higher than any redundancy package.

It does seem like a classic case of try and find a reason for getting rid of someone which isn’t quite there, and then an HR dog’s breakfast on top of it.

The trouble with these sorts of things is there’s rarely comeback for the management involved. Given it’s cost NR a load of wasted money, left them an unfilled vacancy, and arguably caused reputational damage, one would expect some kind of action against the management involved. A fairly safe bet there hasn’t been and won’t be, though. Seen this MO too many times unfortunately, and it rarely ends well.

 

[Wokingham]

disgusting makes me worried hopefully were missing a bit of the story.

as written should be on main news scary tbf

 

[STINT47]

It does come across thatthey wanted to get rid of this employee and used this as a reason to do so.

In most cases when this happens they get away with it but on this occasion the employee has stood up for themselves.

I've seen it happen in some of the places I've worked at over the years. The managers never had any comeback on them as most times the person left without causing an issue.

 

[bramling]

It does come across thatthey wanted to get rid of this employee and used this as a reason to do so.

In most cases when this happens they get away with it but on this occasion the employee has stood up for themselves.

I've seen it happen in some of the places I've worked at over the years. The managers never had any comeback on them as most times the person left without causing an issue.

We have one at my place. Constant poor attendance, and eventually a manager devised a disciplinary, the basis for which was never quite there. Unavailable for months whilst this all took place, tribunal (the outcome of which no one quite knows as there’s allegedly some kind of confidentiality clause), returned to the workplace with a sideways move to pastures new, and then needless to say constant issues ever since, and also needless to say management afraid to touch.

*If* in this case they wanted rid for whatever reason, the management may well deem the £90k as a price worth paying. I’m not sure if the taxpayer would, though.

 

[Haywain]

the management may well deem the £90k as a price worth paying

Much of that would have been due anyway in the form of wages, so isn't an additional expense. The rest will definitely have been seen as worth paying for not overriding the rules of their safety management scheme.

 

[bramling]

Much of that would have been due anyway in the form of wages, so isn't an additional expense. The rest will definitely have been seen as worth paying for not overriding the rules of their safety management scheme.

It may well be an additional expense if they’ve had to pay overtime to cover the work.

In terms of overriding the SMS, it strikes me that the pay-off is to avoid having to test that one out, given the employee has successfully relied on the claim that not fulfilling the requirements of the test was involuntary and medically induced. If NR think that paying one person off is going to make that wider can of worms go away, they may well prove misguided!

 

[muz379]

But it doesn't appear this gentleman was in a union, as I don't see any statement by his union on the matter nor were they mentioned at all.

To be fair by the time things get to a tribunal whilst the union might be funding the legal claim ultimately its the solicitors and counsel that do the representation at that level so it might not seem relevant to mention .

The rest will definitely have been seen as worth paying for not overriding the rules of their safety management scheme.

Thats one way of looking at it , another way is they could have used it as an opportunity to re-write the SMS to cover future instances of this . The argument that they did not want to reinstate him as they woud essentially create a loophole is a nonesese because whilst trubunal decisions do not set precedent it follows that the intepretation of the law and application to the facts here seems fairly logical and could occur again .