bmi pays pilot £62,000 compensation

[flappless]

The following from the Nottingham rag:

BMI DROPS PILOT APPEAL


12:00 - 12 July 2002

An airline which was ordered to pay a pilot more than £62,000 after unfairly sacking him has dropped its appeal against the ruling.

Bmi British Midland was told by a Nottingham employment tribunal to pay Captain John Leslie £62,306. The company had sacked him when he refused to breach air safety regulations and fly four early shifts in a row.

Capt Leslie, who was based at East Midlands Airport, said: "I'm pleased that the company has finally accepted the decision of the tribunal."

The appeal was due to be heard at the Employment Appeals Tribunal in London on Monday but the firm backed down. BMI British Midland had initially been ordered to reinstate Capt Leslie.

However, the company refused to give the pilot his job back and instead he applied for compensation. It was during a further compensation hearing that the award was made.

BMI British Midland declined to comment.

[Wing Commander Fowler]

And there he is now hosting ITV's "This Morning Show" with Fern........ funny old game innit?

:rolleyes:

[QAR ASR]

I guess the unemployed Captain Leslie will be knocking on the door of Easyjet/ Go to seek employment and maintain his EMA base. (Along with the fact they are one of the few employers recruiting)

I`d personally pay money to see the look on his face when he sees his first roster and with a tear in his eye remembers the good old days of only four earlies in a row.

This tale is somewhat reminisent of the tale of the Robin which got rescued from the dung heap by the cat.

[Grotehaasje]

QAR ASR, I am , in fact, the pilot concerned and the article doesn't quite give all the details; please bear in mind the incident occurred almost 2 years ago !

The 4 earlies were not just the problem; it actually went further than that and included amongst other things, a breach of scheduling regulations, lying about the existence of "ad-hoc agreements" to vary scheduling rules, breaches of human rights, the refusal to follow contracted disciplinary procedures, the refusal to follow ACAS disciplinary procedures, the refusal to acknowledge the validity of a CAA medical and the refusal to abide by the terms and conditions of my contract. If you are interested I do have the full decisions of the ET from the 3 separate hearings. Of particular note is the comment from the ET that " There had been no contributory conduct on Captain Leslie's behalf". I was completely exonerated by the Tribunal. bmi cannot say the same.

As to working more tha 5 earlies, the company I worked for immediately after leaving bmi did just that, however, the duties were all carried out within the rules of CAP 371 and I didn't, and don't, have a problem with that.

If anyone is interested in hearing the whole sorry tale I can provide them with the information;subject to Danny's approval the ET's decisons can be published on the forum as they are freely available in the public domain.

The matter has also been covered by Simon Keane at the Notts Evening Post and by John mitchell and Gary Newby at Carlton TV news. Additionally, I believe the Daily Mail or Mail on Sunday picked up on the report.

[Wibble Hatstand]

Grotehaasje,

Just out of interest, did BALPA represent you/help in the legal case?

No axe to grind, I'm just curious :)

[Notso Fantastic]

Grote- do you have any comments ont he fact that BM refused to follow the Court's order to reinstate you knowing that they could do this and the ultimate compensation would not be excessive? It concerns me that companies can flout Court instructions like this knowing they can get away with it for not a lot of damage. It seems to me, although I don't know your details, that 60k is not a lot to compensate for the loss of an established career. We seem to have had at least one similar case in BA. Unfortunately that resulted sadly in the (in my opinion) very tragic stress related death of Captain Stuart Clapson. The whole sorry saga threw appalling light on the handling of disciplinaries within BA, something the several responsible individuals must live with.

[flappless]

Notso Fantastic
You are absolutely correct and it was this point that I wanted someone else to note. Here you have a case where the company, bmi in this instance, has shown complete contempt for the court knowing that the outcome would be relatively cheap. Something has to change in the law to ensure that a company is forced to abide by the judgement of a court in such a case. Perhaps the new pro active BALPA organisation can add this to the already long list of items to be addressed.

[BANANASBANANAS]

Hey Grote,

Pleased to see that you didn't back down and got justice. Would you be the same JL that I worked with in the RAF at EGXI in the mid 80s?

[brownstar]

grot. Glad to see you stuck to your guns and seen it through. I hope that your working again, with a company that sticks to the rules and agreements. So many seem to think they can flout the laws but it takes people like yourself to show them they are wrong. Well done and Good luck !

[Carruthers]

As the law stands at present a I.T. cannot force a company to re-instate an employee. BMI is not in contempt of the court.

[Flying Lawyer]

Carruthers
Unless I've missed it, no-one has suggested bmi is in contempt of court.
The point made by flappless and Notso is that the maximum amount which a Tribunal can order a company to pay by way of compensation if it refuses to reinstate a successful employee is so small that it doesn't sufficiently compensate the employee for what he has lost, and does nothing to deter a company from refusing to comply with the decision. ie treating the Tribunal's decision with contempt.

The suggestion is that the law should be changed.

FL

[flappless]

I must admit that I meant that bmi where showing contempt for the law rather than suggesting that they where in contempt of court- sorry if my post read otherwise. Come to think of it though, why, if a judge has told the company to give a job back, are they not in contempt of court if they don't ? Any legal guys about ?

[mdb3]

The compensation should have been 10 times the ammount given especially if you did not get your job back.

Who was it that said the law is an ass.

[Wig Wag]

The saddest thing is that this ever got as far as an employment tribunal. The courts verdict reminds us that an airline Ops Manual and employment contract are legally binding.

Quite why sticking to the rules should even be an issue beats me. I take my hat off to Captain Leslie; a man of honour and integrity. I hope he finds a more respectful employer and a less pressured environment to work in.

From a general point of view this undermining of a Captains authority is worrying. Many skippers on this forum must have been in situations where they suspected the airline would call them to account. The thought comes to mind that the airline can sack you but the CAA can suspend your licence without which you cannot work. As has been shown neatly here sticking to the rules pays off.

[flappless]

What is even more amazing here is that the managers involved have taken no responsibility whatsoever for what has happened, and how much it has cost the company.

Seems to me like costing the company £62000 is all in a days work for some of those at the top. Kinda makes a complete mockery of the whole idea of saving money. Just goes to show that a bmi manager can't change his spots. Nothing has changed in this company in the last 10 years. The faces change but nothing else does.

[Captain Stable]

Any legal guys about ?Did you notice whose post you were following?

[Mini mums]

John - have you read the top 10 British pilots list by Kate Hilpern?

Would you believe it includes Richard Hill?

I never agreed with your actions at BM - and still don't, but I admire you for standing up for what you believe. A better airline's scheduling department would never had lied the way bmi's has - ghost rostering . . . 100hours in 28 days . . . from the horse's mouth it's been illegal - i just wish the CAA had taken more interest.

Good luck in the future John.

[Grotehaasje]

In reply to some of the questions: yes, I was at EGXI in the 80s.
I didnt get any support from BALPA other than in the initial stages from some of the people on the CC. New Road was singularly silent.

As to the rest of the incident, once Danny approves the posting of the ET decisions and exactly what happened I will be happy to let people know what happened.

The saddest thing about the entire episode is that the individuals who lied, were economical with the truth and just simply surrendered their integrity, still work, in some capacity, for bmi. Of equal interest, however, is that many of the people involved in the matter were themselves encouraged to seek further opportunities to develop their talents with other companies.

One of the lessons from the process is that if anyone becomes involved in any disciplinary process they need help and support from a colleague: I was fortunate in that I asked Captain Paddy Clarke to be my "prisoner's friend" and his advice and counsel was invaluable. I cannot thank Paddy enough for his resoulute support. I also was fortunate that Peter Rolfe's counsel was made freely available.

With that in mind I have available a guide to disciplinary porcedures; this is already available to bmi pilots through the BALPA CC. Whilst it was written with specific referernce to the bmi scheduling agreement and the contract of employment with bmi, it does, nevertheless, contain advice which can be adapted for any company, anywhere in the world, although, again, it is tailored for English Law.

I f anyone would like a copy, I can let Danny or one of the moderators have the document and for a modest donation to the Pprune Fund you could have a copy mailed to you.

May I recommend to every pilot employed by a UK airline the legal insurance scheme run by Alan Hill at www.alpl.com . Alan was a great source of support to me and has been in touch regularly.

Lastly, if ANY PILOT finds themselves involved in a disciplinary process and needs some advice or support please feel to to email me at [email protected] .

[Grotehaasje]

Mini Mums, the options I had were simple; I could call in sick or I could make a stand. I had asked on at least 8 occasions, including going as far as a Director, to have my schedule changed. The schedule was not a one off; I had again at least 6 duty periods scheduled which were in breach of CAP 371 and the AFS. I had asked BALPA and the CAA for advice and their interpretation of the regulations. The whole tale can be told in due course; additionally, there were subsidiary, co-lateral if you wish, issues which had occurred previously.

I would not, however, call Richard an **********; he was doing his job. Whether you, or I would do the job in the same way is open to debate and his competence as a manager is open to debate . As to his flying ability, Richard is a fine pilot, but not anywhere near good enough to be in the top 10 in my opinion.

[Devils Advocate]

Wig Wag, w.r.t. sticking to the Ops Manual.

A wise old FltOpsDir once told me to never forget that Ops Manuals are usually loosely worded in order to allow, if needs be, for the Captain to exercise maximum lattitude in his/her aeronautical deliberations ( err, normally to provide the best Commercial outcome ? ) but where however the primary purpose of the Manual is to protect the company's arse, not the pilots; Veritably damned if you do, and if you don't.

He then told me to know the OpsManual both inside out and backwards and forwards, and always ask yourself why certain things within it are written as they are - and what that really mean to you !

[Notso Fantastic]

It seems at times there are certain pilots for whom the absolute intention by their Flight Ops/whoever is that THEY WILL NEVER COME BACK. In BA we had the dreadful case of Capt. Stuart Clapson. A few minor transgressions over the years, insists on smoking on the flight deck, hads the incident with the mentally unstable woman at Gatwick screaming that a passenger has a bomb (he hadn't). Disrupted a departure twice, after returning to the gate twice, Stuart made, shall we say, an undiplomatic PA. Certain managerial individuals took this as an opportunity to discipline an individual who had evidently rubbed them up the wrong way. In succession, I believe it was docking seniority/appeal/demotion to co-pilot/appeal/termination/appeal. Long drawn out stressful experience. Unfortunately Stuart suffered a stress related death after BA was ordered to reinstate. We were awaiting the outcome with fascination. I gather BA was determined to do as in this case ignore the tribunal and willingly pay the paltry compensation for the loss of ones career. It is incredible and to our shame British Law is as toothless as it is in these matters for us when I read that British law is to be changed to increase the penalty for having counterfeit goods (maybe just simple Far East software?) to 10 YEARS ! A court order for reinstatement should be just that- reinstatement. If the law is to be taken seriously, how can companies flout it like this?- I think a lot of us would like to know!

As a matter of interest, the court cases against Stuart were disgraceful. The evidence presented was so laughable it was actually tragic. One of our senior managers was sitting in a British High Court spouting about how Stuart had 'damaged a boat 20 years before', they dragged up a pilot hating Purser who gave evidence that Stuart was so 'beside himself he stumbled when he went downstairs to see the woman involved and see why she was creating such a scene and accusing an innocent party' (the moral there is if you stumble in such a situation, retreat to the F/D and then make another gracious exit!). The evidence was rejected by the Court. The pilot manager left for another airline shortly thereafter. The others appear to have gotten away with it, though morally they share responsibility for taking the father of a 9 year old away.

A sad saga- I have gone into it in detail because it shows nothing has changed- British aviation disciplinary procedures STINK, and it is still ongoing. If any fine detail is incorrect- I apologise- I have the full Employment Tribunal report available- it makes horrifying reading when you understand the limited intellect of who can be sitting in judgement over you!

(and I haven't even touched on the saga of BA's treatment of Captain Chris Lankey............)

[Electric Sky]

JL and MP

I work for bmi .... enjoy my job but have to say good luck to you both .. you sound better off as you are. I have a philosphy that if you are wrong about something, and we all are at some time then you hold you hands up and admit it .... shame this isn't shared by all.

Best of luck.

ES ;)

[me-judice]

Employment Tribunals have the power to order reinstatement where the facts of the case merit it. They have no power to force an employer to comply. A failure to comply with such an order merely increases the compensation payable. If the award figure quoted is accurate, then this represents the maximum a Tribunal can award in cases of unfair dismissal. Tribunal awards in cases where discrimination on the grounds of sex or race is involved are not subject to this cap – the potential award is unlimited.

The Tribunal system was modified a few years back, when the name was changed from Industrial Tribunal to Employment Tribunal, and the upper limit in unfair dismissal cases was raised from c26K (seldom awarded) to the present limit. The original proposal was that awards in unfair dismissal cases would no longer be limited – the award would be linked to the amount of damage suffered – but this was blocked by that nice Mr. Mandleson. There is some doubt whether the present limit complies with EU law, which requires awards to reflect the loss suffered.

When future employment prospects and pension rights are considered, factoring the award in the present case by ten may not be too far out.

If nothing else, it illustrates quite why employers are petrified at the prospect of even a completely unfounded sex discrimination/harassment claim, but can look upon one for unfair dismissal with utter contempt.

Why has this airline’s conduct not been picked up by the national media?

[Little Blue]

.....I think you'll find that it has...at least, in the Midlands, but if the media choose to keep it within the middle pages, or a 30-sec item on the local news, then that it is how relevant they deem it to be.... ;)

[Grotehaasje]

Little Blue, you are no doubt quite right that it is only of minor interest in the Midlands;howver, I was interviewed 2 days ago by a reporter from the Northcliffe group of newspapers which includes the Daily Mail and Mail on Sunday.

Whether they will run the story remains to be seen; it may be consigned to the inside page of the local paper or 30 seconds on Carlton news but even such limited coverage doesnt help improve bmi' s stature in the eyes of the traveling public.

Additionally, there are several other cases in progress against bmi at varying stages in the process. One in particular will make very interesting television once the issue is ventilated at Tribunal !

What you have to realise is that my case, and the treatment I received, is not isolated: the culture within the company promotes contempt towards the crews, both flight deck and cabin crew. Until there is a change in this fundamental there will be a succession of complaints from staff and a continuing high turnover.

When the ET ordered bmi to reinstate me the best thing and most sensible thing they could have done was to comply and to then give me the responsibility for handling their disciplinary and greivance process. That would have given the flightcrew confidence that they were dealing with someone who new the system and procedures, and had also been through the mill against the company. It would have given Richard Hill a huge burst of credibility with the crews as he would have shown himself to be an honourable man by abiding by the ET decisions and acknowledging that bmi were wrong throughout.

In short he would have been credited with a "win-win" result; as it is bmi have let themselves down and are still going to find themselves embroiled in disputes which waste time and money and cause incalculable damage to their repautation.

Ask yourself what is more important: spending £20 million rebranding to have an "i" added and the rest of the name in lowercase or spending less than 1% of that in improving and maintaining staff morale?

[Yellow Sun]

Grothaasje

"I didnt get any support from BALPA other than in the initial stages from some of the people on the CC. New Road was singularly silent. "

Were you a member of BALPA, in good standing, at the time of the initial incident which set in train this sorry course of events?

YS

[Fuzzy112]

Yellow Sun

Don't you just love the sound of silence !

[Grotehaasje]

Yellow and Fuzz,

My apologies, I have only just logged on and found your posts.

The support I hoped for, and asked BALPA for, was simply a statement that they supported my case: I did not ask for my legal fees to be paid: on the contrary, I made it quite clear from the outset that I did not want financiall support. This was my fight, not BALPA's.

Nevertheless, when I asked BALPA head office for support and advice, Carolyn Evans apart, I got nothing. Reg Allen did not respond to emails and John Moore was continually out of the office.

Roger Kline, on the other hand was always in the office, and I spoke to Roger on several occasions about other issues, however, he is not involved with bmi.

Sean McHugh and Paul Montgomery were helpful in the initial stages, Monty particularly so. However, they had other battles to fight with bmi in an ongoing war and once I had been sacked I no longer fell within their sphere of influence.

Whether I was was in good standing - I do have an email from BALPA head office stating just that, you are welcome to a copy if you wish, but again I point out that all I asked for was a statement of BALPA's position, not financial support.

Now, fortunately for you, and every other CAA licensed pilot, I put my money where my mouth was; if your contract states that a CAA / JAA Class 1 medical is the requirement for your job then that is all you need. I was asked to undergo a psychiatric assessment by / with an examiner who had no training in aviation medicine. I did point this out to the Personnel Manager and my Fleet Manager who both acknowledged and accepted that I fulfilled the Ts & Cs and was fit, but then ignored it; furthermore, this was way outside the scope of my, and every other bmi pilot's contract. The Tribunal found that it was "unreasonable".

Now, when you call in fatigued, as you are required to do if you feel that your fatigue would jeopardise the safety of the flight, you may be asked to have a psychiatrist meet with you and discuss your "problem". The fact that the problem may well not be yours but the company's is insignificant; fortunately for you I have walked that path and have an independent decision that requiring a medical assessment outwith the terms and conditions of one's contract, and with an unqualified practitioner is unreasonable.

Whether I was a member in good or bad standing is not the issue; whether BALPA were prepared to make a staement of support - that doesn't cost them - is. There was never any statement of support from New Road. As I said, apart for Carolyn, who was helpful, I was left to my own devices.

If you think BALPA are always forthcoming, even with " members in good standing" I think that you will find that the needs of the individula may often be subordinate to the needs of the many; such is the existence of the political animal.

Finally, I'm not bitter or angry about BALPA's refusal to make a statement; I took a leading role in pressing for BALPA recognition in the company I worked for immediately after leaving bmi, whilst all this was going on. As I said, I didnt want any financial help, I made that clear from the outset, all I wanted was morale support.

You will both have read the variety of threads here on the efficacy, or otherwise, of BALPA, and of course of BALPA membership; that is at issue. Your comments only seek to move to the debate away from the primary issue. Whether you like it or not, I was lied to, repeatedly by managers; even when presented with my contract of employement they refused to read, or acknowledge it. They discussed, and presented in eveidence, their refusal to accept the terms and conditions. The outrageous demand that i should undergo a medical examination of their choosing, with a practitioner of their choosing, at a time of their choosing and in a place of their choosing fundamentally threatened every pilot in bmi; if I may plagiarise the words of the Operations Director, as reporetd to me from a roadshow " we will manage the over 55's situation ". Now call me a cynic, but had I agreed with their demands, and equally had the tribunal, they suddenly have a precedent to work on; it was, therefore vital, that there assertions were refuted.

BALPA memebr or not, in good standing or not, you now have a precedent to argue should your employer demand that you have your next medical with an unqualified practitioner.

BTW, bmi had pre briefed the doctor on what to look for!!!!!!

[Seriph]

So mate, what were you paying the grossly extortionate sum of 1% of your salary for??? Insurance? legal support? Help? Looks like a waste of time and money and then you go and seek to get BALPA into your new company, have you no conscience? Join the IPA/IPF they look after their members.

[Grotehaasje]

Seriph,

If you look at the BALPA rules legal assistance / insurance is not automatic; in fact, BALPA are reluctant to fund every Employment Tribunal as it costs £20K - £30K in legal fees. The words of the Deputy Secretary, not mine.

What you have to bear in mind is that when you work for a company with no morals, bmi in this case, the only possible chance you have of getting any improvement in the conditions is through solidarity. To that end BALPA and the bmi CC are the only hope.

Sean McHugh, Barry Hedges, Paul Monty and Jeremy D-S, amongst others ( not forgetting that stalwart Martin Hawkins) work their butts off for the troops;the least you can do is offer support by being a member.

Sometimes you have pay your taxes for the common good rather than for your own self interest. This "profession" has gone down the road of "F**k you Jack, I'm allright" for too long; if you want to gain the respect of your peers perhaps you have to take a more selfless line at times and support your local CC.

But let's not lose the plot here; the case was not about BALPA doing nothing or doing too much; in fact my legal advisors asked BALPA not to write to, speak to, the company over my case as they believed it may be prejudical to have more than front open.

The case was about the blatant disregard by, an ostensibly highly thought of company, treating a Captain whom they regarded as "Outstanding in some aspects and significantly above the average standard in everything else" ( last LPC / OPC report by the guy who signed the letter sacking me 4 months later with utter contempt.

BALPA did not breach the terms and conditions of my contract;BALPA did not disregard the principles of natural justice; BALPA did not LIE repeatedly to me; BALPA did not waste the time of the Employment Tribunal; BALPA did not, in the first instance, break the scheduling rules.

BALPA, in fact, had already told the company that the arrangements they had in force were not appropriate; however, the CC were so stretched that keeping all the balls in the air was difficult. If you look at the sickness records for the bmi Fokker fleet for the summer of 2 years ago you will find that significant numbers were off long term sick due to stress or stress related illnesses.

Stop muddying the water by trying to drag BALPA and the CC in to this;it has nothing to do with them and everything to do with the incompetence of bmi management techniques.

That is what the case dealt with and that is what this thread is about !

[Grotehaasje]

Hey Fuzzy,

How's the sound of silence now?

[Seriph]

So what exactly were you paying 1% of your salary for?

[P.Pilcher]

Ladies and Gentlemen, this Bulletin Board has appraised us most clearly of an employer who may not treat its flying staff in a manner which most of us would like. At present jobs are hard to come by but as sure as "eggs is eggs" the situation will change in a year or two and the boot will then be on the other foot. Let's hope we all remember the contents of this thread when "they" are screaming at "us" to fly for them.

Remember BWA!

[Hew Jampton]

Seriph, before you continue with your anti-BALPA, pro-IPA stance, why not wait for a full answer to the earlier question: "Were you a member of BALPA, in good standing, at the time of the initial incident which set in train this sorry course of events?"? Even if the answer is in the affirmative, can you guarantee that IPA or any legal insurance scheme would have taken on the case regardless of forecast cost and forecast outcome?

[Yellow Sun]

Grotehaasje

Thank you for your response to my question:

"Were you a member of BALPA, in good standing, at the time of the initial incident which set in train this sorry course of events?"

All I was hoping for was a simple, unequivocal "Yes" or "No" Could you oblige?

Thanks
YS

[Fuzzy112]

Grotehaasje

It's deafening cos you didn't answer the question, as Yellow Sun has said.....

"Were you a member of BALPA, in good standing, at the time of the initial incident which set in train this sorry course of events?"

All I was hoping for was a simple, unequivocal "Yes" or "No" Could you oblige?

And yes it does matter because on the one hand you say

"I didnt get any support from BALPA other than in the initial stages from some of the people on the CC. New Road was singularly silent. "

And then you say.....


"Stop muddying the water by trying to drag BALPA and the CC in to this;it has nothing to do with ......"

Seems to me like it is you who are 'dragging BALPA into it and muddying the water. Try to be a bit more consistent in future. The only reason I ask is because I KNOW you were not a member in good standing at the time of the incident - so be a big boy and own up !

I think I'll cancel my car insurance this year - with your logic I can have a crash and then get a 'statement of support' from my old insurance company. Grow up for christ's sake, BALPA is not a charity.

[falps]

Messrs Fuzzy & Yellow, reading this thread purely out of interest, I note that that the subject of BALPA was introduced by Mr. Wibble Hatstand and not by Grotehaasje. Which makes the statement "it is you who are 'dragging BALPA into it and muddying the water. Try to be a bit more consistent in future." in the post above rather odd, to say the least.

Grotehaasje writes: "Whether I was was in good standing - I do have an email from BALPA head office stating just that, you are welcome to a copy if you wish" so you might or might not have a point regarding the currency of membership here, but your sarcasm seems rather unwarranted to the impartial observer.

The way posts by Fuzzy & Yellow faithfully follow & support eachother is very endearing though.......... :D

[mdb3]

G

If you were put in a similar situation again, what would you do/is there anything that you would do differently?, what advice would you offer to anyone put in a similar situation?

[Arkroyal]

Come on Grote..... were you or were you not a member of BALPA on the day you called in sick???

Yes or No.

[Son Of Piltdown]

"Were you a member of BALPA, in good standing, at the time of the initial incident which set in train this sorry course of events?"

I.E. Were his subscriptions paid up. The suggestion being that BALPA has a patronage culture and might not support you if your face doesn't fit. That would make it a club not a union.

A wise pilot would belong to BALPA, the IPA and ALPL.

[Seriph]

Hew Jampton. The point of IPA or, if provided, company insurance, is that like car insurance the prospects of winning or losing are not considered, the INSURANCE pays your legal costs full stop. There is no assessment of win or lose by some treasurer'. BALPA is a very expensive gamble and from what we have observed here a dissapointing one.

[Hew Jampton]

from what we have observed here What have we observed here? The reluctance to commit members' money to someone who it would appear was not a member?

[WupWupPullUp]

YellowSun,

You have obviously missed the reply which was made to your question "Were you a member of BALPA, in good standing, at the time of the initial incident which set in train this sorry course of events?"

Well, I saw the reply fine. So, to help you out (and in nice big letters, so that you don't miss it again) :

"Whether I was was in good standing - I do have an email from BALPA head office stating just that"

Just in case that isn't clear, I'd read that as a YES

OK?

Jolly good.

Move on...!

[Grotehaasje]

Arkroyal,

I did not call in sick.

You will know that I reported for duty and declined to operate as the roster was in breach of the AFS and CAP 371. You will also know that I had asked on at least 8 occassions to have that roster changed and that I had been lied to about the existence of an agreement with BALPA which allowed bmi to vary the CAP 371 scheduling rules. You will probably further know that "scheduling of this nature is outwith the spirit and intention of the regulations". You may not know that even after being told by the Fokker Fleet Manager that this "agreement document" was quote " Somewhere in the company paperwork" unqoute, it was never produced in evidence even though I did ask for it to be disclosed.

I did not ask BALPA for financial assistance or legal assistance; I have made it clear that my legal advisers asked that BALPA did not get involved as they considered it imprudent to have 2 fronts active simultaneously.

However, the matter of the requirement to have a medical over and above the CAA Class 1, in breach of the contract, was sufficiently important to ask for a statement of support from BALPA validating my, and every other pilot's, right to have my contractual T's & C's upheld. When asked for a definitive statement on this one matter, in a case which lasted almost 2 years, New Road were singularly quiet !

Moreover, in view of the reported statement of the bmi DFO that the company "Would manage the over 55 situation" it was essential that the question of extra over medical assessments was addressed.

Carolyn Evans at BALPA did say that the instruction to have a medical with a doctor of their choosing, at a time and in a place of their choosing was unreasonable; as it turned out, which was only disclosed in evidence to the ET, the doctor ha been pre-briefed. The fact that he was not an AME was also not taken into account by bmi, even though it was pointed out omn more than one occassion.

If you work for bmi, as you do Arkroyal, you will know that your contract expressly prohibits dismissal on medical grounds if you hold a valid Class 1 certificate; trouble is the company will not adhere to that contract.

The BALPA involvement is a red herring in all of this; I have made it clear that dont have any problem with BALPA. I am a member "in good standing". The request for a statement is not inconsistent with being a member in good or bad standing when the principle being examined is fundamental to every pilot.

So, instead of bleating on about BALPA, why not turn your attentions to bmi and their failings? No doubt Arkroyal, you have operated the same schedule I refused to operate, as I know you are a Fokker pilot based at EMA. That being the case, you obviously condone breaking the regulations and indeed breaking the instructions laid down in your company's Ops Manual.

Your company has made several statements to the Press and TV insisting that safety is their number 1 priority;however, in your case, by carrying out the same duties I refused to do, and was vindicated by the ET for so doing, you broke the regulations and hazarded the safety of your crew and passengers. That is hardly consistent with your company's stance on safety, is it?

So, I will repeat for your benefit once again, I don't have any problem with BALPA's stance in this matter as my legal team specificallly asked them not be involved. The only "assistance" I had hoped for was a statement refleting the position of the Association regarding the requirement to have a medical over and above a valid Class 1.

So. if I the BALPA involvement, or lack of it, is not a problem for me, and it was my case against bmi, why don't we just concentrate on the shortcomings of bmi in all of this ? Or would you rather just put your head in the sand and ignore that until it's your turn to be on the receiving of it? You obviously have a short memory; you saw how PR, a very senior and well respected man, was treated when Miss Bennett made the accusations against him. Do you know how the pilot who broke his ankle on the escape trainer is doing in his fight to get compensation? Do you know how they treated the Airbus pilot who was dsimissed? The one thing they are is consistently inconsistent.

[Seriph]

Still don't understand why you were wasting 1% of your salary.

[Plastic Cockpit]

Grotehaasje,
Your stance on the aforementioned breach is admirable and certainly you have paved the way for others but I must correct you on one matter.

"No doubt Arkroyal, you have operated the same schedule I refused to operate" and "you broke the regulations and hazarded the safety of your crew and passengers."

Yes CAP 371 was written and constantly developed to protect the crew member from being forced to work more and at times that are physically draining. But this does not imply by nature that anyone operating outside this is not safely capable of doing so. The rule can only be written taking into account the average.
There are influences outside CAP 371 which also deem whether we are best fit to operate a duty.

Please dont get me wrong though. I certainly dont accept that it is alright to flaunt regulations. Anyone that does operate outside any promulgated requirements, does so at their own peril. And to knowingly do so is an even greater risk. But it doesn't necessarily mean it is a risk to safety. The insurance companies would certainly have a feild day should anything go wrong.

I admire what you have done and the B**ls it must have taken to follow it through but I would also say that attacking colleagues will lose you respect. It is the company that have wronged you. There is no argument on that one.

[Electric Sky]

What was the schedule you refused to operate Grote? Is it still being rostered or has it since been amended in light of your case?

Going back to your original post, will Danny allow your story to be published on Pprune?????

ES ;)

[AMEX]

Grotehaasje Well done mate. It's good to see some people are able to stand up for themselves.
Not always successfully I must say but in your case it worked out fine and as you said, now that you have shown the way, others might benifit from your case.
Nevermind the ones who will never ever see anything good in individuals action, these guys will always shout loud at you but what have they achieved so far ? A flying career, oh well that's a something exceptional ins't it ?

Good luck all and thanks Grotehaasje

[boris]

Pete
'Let's get back on track', you said.
Hear, hear and the bringing up of that nebulous old red herring, the "old boys network" will ensure derailment if anything will.
Do you really think that a bunch of senior management have got nowt better to do than decide how to screw a fellow pilot.
The anwer is a resounding and catergoric "no".
I know you both and I also know that, had you thought about it, you probably wouldn't have said what you did.
FYI, the subject of this network was done to death some while ago.....
b

[RAGBAG]

WupWupPullUp

I don't think Yelowsun's question has been answered. What about the : "at the time of the initial incident" part of the question?

I am a touch suspicious now. A simple question is not being answered. All it takes to answer it is a "yes" or a "no", so why not clear the air Grotehaasje? Just to refresh your memory the question was:

"Were you a member of BALPA, in good standing, at the time of the initial incident which set in train this sorry course of events?"

What is it? YES or NO?

RAGBAG

[Grotehaasje]

OK Ragbag,

At the time of the initial incident I wasn't but was a member of BALPA.

How's that ?

I had a membership application pending and as I was rejoining paid subs back dated to April.

My reasons for rejoining were that I was cheesed off with the way the pilots in the company were being treated, that I was very impressed with the breath of fresh air Paul Montgomery introduced when he became EMA rep and following a conversation with Barry Hedges decided that the CC needed as many numbers in the Association as possible to back their claims. In fact, Barry did say when I remarked that I was considering rejoining that I would be very welcome as they, the CC, needed as much support as possible.

I reiterate, I did not ask for Assistance from BALPA, have no axe to grind with BALPA or the CC. My legal advisers actually asked BALPA not to raise the matter withthe company. However, when I asked for a statement in support of my stance over the non contractual requirement to have a medical with a non qualified examiner at a time and place of the company's choosing they were, Carolyn Evans apart "strangely quiet".

What you still forget is that I was completely exonerated by the ET; this is an extract from their findings in the first of the decision documents -

"Having found the dismissal unfair we now consider whether there is any reason to reduce Captain Leslie’s compensation because of any contribution to his dismissal by his conduct. We do not find that Captain Leslie acted other than properly in this matter. We take into account that pilots, including Captain Leslie, are intelligent and well paid employees, articulate and able to use their intellect and ability to express their position clearly. British Midland, however, drove the process which led to his dismissal and should have made more effort to accommodate his opinion as set out above. We do not find that there was any culpable or blameworthy behaviour by Captain Leslie. He was entitled to refuse the medical and did so. He tried to meet them halfway by having a CAA examiner medical when one was not necessary. "

That is an extract from para 87 of the first document; a decision which my legal team described as "robust".

What you have to consider is why the process was driven by bmi when it was flawed from the outset. What was driving their actions ? If something similar happened to another bmi employee could that individual, BALPA member or not, have any faith in the management sticking to the terms and conditions of the contract and the ACAS guidelines ? Would they honour your basic human rights enshrined in the European Human Rights Act ?

Airlines, not just bmi, expect high standards of their pilots; quite rightly so, however, in my case, those standards were not reciprocated.

Rather than just feed info in dribs and drabs when Danny approves the publication of the Decision Letter, which is already in the public domain, you have the whole story. When I get the transcripts of the evidence that makes even more interesting reading !

[Grotehaasje]

I've been ambling round the site and encountered the thread about 900hrs at Ryanair.

Fascinating really; on the one hand I have been vilified and treated by bmi as some sort of leper for standing up to one form of regulation bending, but apart from colleagus who have privately been supportive the world and his effo have been relatively disinterested.

On the other hand, and at the the other end of the scheduling scale, the matter of flying, or operating, 900+ hrs has stirred up a hornets nest.

Do I detect, somewhat cynically, an inconsistency here ?

Is a complaint at one end of the scale justifiable but at the other end completely irrational?

Where exactly do we stand on the regulations ? There are a few threads running about duty and flying hour rule "interpretations", what does the average line pilot feel though ? Should he / she abide by the rules, consistently, or only when it suits?

What is acceptable, to the majority? What is unacceptable ?

Perhaps this affords an opportunity to redefine duty limits and flying hour limits.

[Stan Woolley]

Grotehaasje

Aviation,in the UK at least, is changing from a great profession into a second rate job. We as pilots are largely to blame because we are too sh*t scared of 'whatever' to stand up and say no!

Most managers no longer give a monkeys about anything except covering their own butts and 'yessing' their way to the top of the sh*tpile. Everybody blames the beancounters but they are only doing what the top end want. How many managers stand up and say 'no' to stupid or dangerous ideas? With apologies to the few genuine people left out there, and I know there are some, not many!

Where is the CAA in all this? Last time I spoke to them the message was basically; 'I know lots of bad things are going on but there's nothing we can do'. Well who the hell else is going to stop the rot, because its accelerating downhill from my perpective and somebody blo*dy well ought to be pushing the other way.

Well mate you are pushing the other way and I for one say good on ya. When the first fatigue related crash happens in the UK (If it hasn't already) your conscience should be clear, unlike the tosse*s who no longer have any conscience.

Sleep well.

[HugMonster]

A couple of excellent posts there.

Trying to get the last drop of blood out of the stone is killing the industry and the profession. Sooner or later it will kill passengers. Making money is not the be-all and end-all of anything. If we can't fly safely, if an airline cannot operate safely, with regard to the quality of life of their staff and comfort of their passengers and make a profit, then something is seriously wrong.

[Arkroyal]

John

I didn't make my last post just to rattle your cage. Your assumption of how much your fellow fleet members know about your case is exaggerated. I have few hard facts upon which to make a judgement.

Perhaps your attack on my professional standards could be repeated to the other 100 or so on the fleet, but I still don't know exactly what point you were making that morning.

My question, which you have still to answer unequicocally, was prompted by other posters who obviously assumed that you were a BALPA member at the time of the incident.

'At the time of the initial incident I wasn't but was a member of BALPA' is not an answer.

You will know that the terms of my contract do not allow me to discuss the merits or demerits of bmi on this forum, so I will not. My private views about your case, based on the scant facts I have at my disposal, remain private.

I crashed my car yesterday, so I'm off to get it insured.

[bullshot]

Arkroyal
GroteH has answered your question so wind your neck in and stop deviating from the subject of this thread.
To an outsider in this like myself your willingness to put your spoke in re the individual, then hide behind a condition of your contract as a reason not to post on the main subject seems pretty spineless. Buck up man!

Flanker... Great post - I'll buy you a beer!

[Wig Wag]

Grotehaasje: I think your Employment Tribunal result is very signifigant. You are to be applauded for your moral courage and integrity. We need a few more cases like yours for Parliamentary Select Committees and other public bodies to take note of the commercial pressures airline pilots are under these days.

The central issue is that of the airline undermining the authority of the Captain to make a safe decision. They do not have this right in any shape or form but some companies love to try and exercise it through the appointment of weak pilot managers. Quite where the CAA stand on this issue I don't know. The move towards self regulation in airlines does not help; there is less excuse for the Ops Inspector to get directly involved. A press campaign would help of course. I recall that the Daily Telegraph was the instigator in reporting failings in the NHS some years ago.

Other professionals lament the reduction in their status. I had a fascinating conversation with a city architect the other day. Recent legislation has fundamentally changed the way they work. In major building projects the contractor now appoints the architect to 'advise' on the project. This has come about to allow contractors to control the architect and costs. The result? Cheaper buildings. Previously the architect could put his foot down and refuse to allow a building contractor to use cheaper materials and design short cuts for example. The boot is on the commercial foot here too.

Ask a hospital consultant how he feels treated by patients and staff. He at least can speak more freely than an airline pilot.

The pendulum in society has swung too far towards commercial interests and away from professional standards. The malaise in the airline industry will go through a major safety related incident or accident which allows these issues to surface. More ETS results like yours would helpof course.

What I do hope for is that the next BALPA General Secretary is a tough guy and not a compliant industrialist. We need a pilot who will stand up for safety issues.

For anyone interested the report on the Employment Tribunal is available from:

ETS
Field Support Unit
100 Southgate Street
Bury St. Edmunds
IP33 2AQ

0845 795 9775

The case number is: 2600427/2001 and the require a cheque for £10.00 payable to the D.T.I.

[Grotehaasje]

Bullshot,

Thanks for the support but I know Ark and he's not a bad lad. I wasn't having a go at you personally about operating the roster; it has probably changed now as a result of my case, just making the point that people were working this and other "dodgy" rosters because of the culture within the company.

Maybe things in bmi have changed now that there have been enormous changes in the management: I couldn't quite understand why bmi, on being ordered to re-instate me, refused to do so within 10 minutes of the ET making the decision. A whole raft of managers involved the case had either left the company or been moved to other jobs so I would not have been involved with them on a day to day basis.

As to the matter of hiding behind contract, the DFO admitted under questioning that whilst it is written in the contract that pilots are prohibited from discussing company business with the media, including the internet ( to thee and me that's here) it is a matter of what he will tolerate rather than absolute.

I think, given that statement, Ark could shoot himself in the foot at anytime so needs to tread carefully !

One of the points Ark made was the scant information available; I was told by former colleagues at bmi that information which was blatantly wrong was being disseminated. Until I tell the whole tale, or you read the ET reports it will be subject to speculation.

It would not, however, be completely fair if I gave my version events, even though they were accepted by the ET without bmi having the opportunity to reply. The publication of the ET decisions overcomes that by being the impartial opinion of a third party versed in these matters.

However, I know that Danny gets in the neck from various sources who consider the line has been crossed in many threads, so don't want to cause him any trouble. If he says it's OK to post it, and he has seen the last decision letter himself, then I'll tell the whole tale - in an abridged form, it isn't that exciting. Danny can even "proof read it" before it is posted, I don't mind.

Incidentally, and Danny can verify this, when this whole process started back in Sep 00, I wrote and asked Danny to "censor" any threads concerning the case as it was sub-judice. Additionally, it protected my then employer from flak in a case I thought, mistakenly as it turns out, would be handled in house, quickly and honourably.

The relevance of posting the information is not to throw stones at bmi ( the pilots and cabin crew I worked with are a lovely bunch - Hello, Marilyn and Two Sectors!) for their handling of the matter; it is up to their management to learn from my case and apply those lessons in the future. It is provide some information and guidance to the thousands of people. not just pilots, who could, in the future, find themselves going down the same, or a similar route.

Whether being forewarned would help, however, ultimately would depend on how your employer, and the managers, acted. It would depend on their knowledge of disciplinary and greivance procedures, which in bmi was lamentable, given that they have a legal department, a personnel department and advice from a legal practice in Sheffield, and how they implement those procedures, bearing in mind the principles of natural justice.

I can tell you, though, that a few individuals who asked for, and received advice from me on how the process works have found it helpful; it isn't something we encounter normally.

[Seriph]

What we are getting of course is one side of the story. Certainly the findings of the ET are significant but not necessarily conclusive, if this rostering practice is illegal then there should be no case to answer, if not then presumably others are working it without complaint? BMI is a big outfit and has been going for some time, representation and procedures are presumably well established why is one guy apparently out on a limb?

[Grotehaasje]

Seriph,

The findings of the ET in my case were conclusive.

The rostering practice was not in accord with CAP 371,the company scheduling agreement, or the approved FTL scheme. The document relied upn by the company to legitimise the practice did not and does not exist. Perhaps others will reply to comment about others working it without complaint.

The fact that the representation and procedures are well established does not make them fair, adequate or in line with the existing guidelines or law.

The criteria of a "big" and "been going for some time" do not afford a company invulnerability or the option of chosing which regulations it will comply with, and when. On the contrary, those very criteria make it more likely that a thorough review might reveal flaws which mitigate against a consistent and fair procedure being applied.

I might add that I'm not the only person out on this limb; several individuals are engaged in processes with bmi, or have been during the course of my ET. I refer you to the thread Maximum Pete posted regarding his experience.

[Sleeve Wing]

Evenin', gentlemen.

Got into this thread quite late but have been totally fascinated.
Nice to see there are still some with the guts to stick to Schedule "F" and to take issue with the way Crewing are still being encouraged to distort bilateral agreements. 'Twas ever thus.
("Never mind the 4 hour delay, just put yourself on duty 45 minutes before your actual takeoff time.")

There are only two things that confuse me.
1) I thought it was in unacceptable taste to mention anyone by name, no matter how sh**ty the subject might be.
2) Why wasn't this thread first raised on the bmi forum which has been virtually empty for at least a month now ?

Anybody care to enlighten me ?

Rgds, Sleeve.

:confused: ;)

[Anne.Nonymous]

Sleeve

As I recall it WAS first raised in a closed forum - the bm_Allpilots OneList. Was that not where he said he wasn't going to do the duty - a day before?

Anne

[Little Blue]

Sleeve Wing...
.
I agree with you re the naming of individuals...
Leaves a nasty taste in the mouth, especially as they
cannot answer back....at the moment.
.
Look forward to hearing the "other side of the story";)

[lurkio]

I believe it was Flanker who posed the question of where the CAA were in all this. Simple, they delegate their watchdog powers to a third party these days. Guess who, yes the company pulling the fast one in the first place. When the poacher is also the gamekeeper there can only be one winner and it ain't us.
Ark baby, I knew the basic facts of this case at the time and it was only post the incident that things got changed slightly.
Best of luck Grotehaasje.
lurkio

[Grotehaasje]

You dont have to take my word for any of the "wrongdoings" now; look at the proposals to just do away with your contracts under the current AFS.

I'll have a few days over the weekend and I'll start to put post some of the facts, not opinions, so that you can judge for yourselves.

And just for the record, whilst the whole topic was "first raised" on the Onelist the requests to have the duty changed was not. It went as far as emailing a Director, albeit unsuccessfully.

The truth is out there somewhere; and it'll make good holiday reading. Well, marginally better than an Archer novel ;)

[WangEye]

Fascinating - and some very important issues here far beyond the personal - professional, safety, legal, whistleblowing, industrial relations, solidarity.....even moral and ethical.

How then can an old computer (semi)illiterate like myself save it, beyond dumping it all into a document? And can I request that when it reaches the size limit or drops to the bottom of the board that this thread is archived?

Grotehaasje - well done on "winning" and for raising these issues.

WE.

[Grotehaasje]

The Employment Tribunal Decision Document

This is the text of the Decision Document from the ET; it is one of 3 documents I have and which are genearlly available. I have Danny's permission to post it and have scanned the original in and corrected the spelling; although, there may be the odd error. I have not changed any names, nor fiddled with the formatting nor have I have selectively added or omitted anything. Any erros are simply due to the scanning and OCR process.

The document is large, it runs to more than 17 pages;it will have to be split over 4 or 5 posts, my apologies.

Counsel was Mr Richard Seabrook of Ropewalk Chambers Nottingham; the instructing solicitors were Mr Phillip Hoskin and his assistant, Mr David Seals, of Andrew and Co, St Swithins Square, Lincoln. Representing bmi was Ms Sarah Porter of Kemp Little.

Once you have read the document, please note that I will be on holiday from this Friday, the 9th, and hence unable to answer any questions, or debate any points you may have. Furthermore, please read this and consider the implications for the other thread regarding bmi contracts.

*************************************************

Case No: 2600427/0 1


RESERVED DECISION


The unanimous decision of the Employment Tribunal is that:

1 The respondent breached its contract of employment with the applicant.

2 The respondent unfairly dismissed the applicant.

3 There will be a hearing to determine what remedies for breach of contract/unfair dismiss& should be ordered in the applicant’s favour at 10.OOam on 26 November 2001 at Lincoln.


EXTENDED REASONS

The ISSUES

1. The issues for the Tribunal to determine in this case are whether the respondent had acted in breach of its contract of employment with the applicant by requiring him to attend for a medical examination before permitting him to return to flying, the principal duty of his employment and in summarily dismissing the applicant. Further, we were to determine whether there had been an unfair dismissal having both regard for the reason for the dismissal and the procedure adopted by the respondent.

THE LAW

2. The contract between employer and employee is to be found in written documentation containing that agreement and also in the agreements made between them from time to time. A party which acts contrary to the express terms of the contract is in breach. Breaches of fundamental terms given the other party the option to treat the contract as repudiated. In such circumstances rights under the contract including the right to notice of termination are lost by the party in breach. In addition are terms and duties to be implied into the contract including the ernployers duty to provide a safe system of work and safe competent colleagues for its employees (Wilsons & Clyde Coal Co_Ltd V English [1938] AC57HL).


3. There is to be implied into contracts of employment a mutual duty of trust and confidence. This requires a party not without reasonable cause to conduct itself in a manner calculated or likely to damage or destroy the relationship of confidence and trust between the contracting parties.

4. Requiring an employee to undergo psychiatric examination when there is no mental or pathological illness, but merely a severe degree of breakdown of
1


Case No: 2600427/01

personal relationships could amount to a fundamental breach of the duty of trust and confidence, a breach constituting repudiation of the contract (Bliss v_South East Thames Regional Health Authority f198fl ICR 700 CA’


5. By section 98(1) Employment Rights act 1996 it is for the employer to show the reason for the dismissal when an employee complains to a Tribunal of unfair dismissal. The employer has to show that the reason is one set out in section 98(2) of the 1996 Act or for some other substantial reason of a kind such as to justify the dismissal of an employee holding the position held by the applicant.

6. Once the employer satisfies this requirement the Tribunal is to determine the fairness of the dismissal taking into account all the circumstances of the case including the reason for ft and the size of the employer’s undertaking. and resources. The Tribunal is to determine whether the employer acted reasonably or unreasonably in treating the reason as a sufficient to dismiss the employee.

7. The requirement for fairness applies both to the reason for the dismissal and the process by which the decision to dismiss is reached. In most cases there will be a range or band of reasonable responses to the conduct of employee available to a reasonable employer.

[Grotehaasje]

FACTS FOUND

3. The Tribunal heard evidence over the course of 3 days from the applicant, Captain John Leslie (Captain Leslie), Captain Clarke a pilot employed by the respondent (who accompanied Captain Leslie at disciplinary hearings, appeals and other meetings) Captain Lawrie the Crew Resource Manager of the respondent, Captain lain Cullen the respondents Chief Pilot and Mr Damien Fletcher, Company Personnel Manager. We also considered two substantial bundles of documents and a letter from a Dr Cresswell dated 19 September 2001, a copy of which was provided to both parties for comment prior to the Reserved Decision on 9 October 2001

9, We make the following findings of fact on the balance of probabilities.

13. The respondent is a well known household name company operating domestic and other flights from Heathrow Airport, 9ritish Midlands Airport end elsewhere. It had three thousand employees at Heathrow alone and employed some ninety-six pilots.

11. Captain Leslie, the applicant, was born on 13 January 1946. He was employed by the respondent BMI British Midland (British Midland) as an airline pilot. He had previously worked for Manx Airlines and his service with them was counted as service with British Midland. He was continuously employed from a date in April 1994 until his summary dismissal with effect from 26 January 2000.


3




Case No: 2600427/01

12. A letter of engagement was issued to him by British Midland dated 1 October 1996. This provided terms of employment including an entitlement to three-months notice to terminate his contract after he had completed six-months service.

13. Captain Leslie’s employment was governed by an agreement for service (AFS) which was incorporated by the letter of engagement into the contract of employment. This document contains more detailed provisions as to the terms and conditions of employment. In particular it provides for medical examinations, discipline and termination of service, grievance procedures and flight Time Limitations. We considered this document during the course of the hearing. At paragraph (A) Section 9, Part 1 the document says that:

“Pilots shall not be required to maintain medical standards higher than those required by the Civil Aviation Authority for the issue of a Commercial Pilots Licence, a Senior Commercial Pilots Licence or an Airline Transport Pilots Licence as appropriate.’

14. At Section 18 of Part 1 it provides:

(2) ‘In the event of any other incident, breach of discipline, regulations, etc, necessitating investigatory action, the reason for such action, together with any suspension and duration of same will be confirmed in writing to the pilot concerned within twenty-four hours of notification of the suspension.”

At Section E subparagraph (3) there is provision that the Company may service, or suspend from duties pending an investigation “any pilot Who shall,..


become through gross neglect or omission ……sick or disabled or otherwise unable properly to perform allocated duties or to do so without being a nuisance or menace to others (a certificate from a property qualified Medical Practitioner approved by the company and the Association being sufficient to evidence).”

This showed at least that on some occasions it may be necessary to have a medical examination of a pilot.

At Section H of Section 18 the agreement states:.

“The employment of a pilot shall not be terminated for medical reasons providing the medical standards laid down by the Civil Aviation Authority as necessary’ for the holding of the licence appropriate to the pilots employment are satisfied.”

The grievance procedure is contained within the document at Section 2O. There is provision for appeals in relation to disciplinary action in two stages.

4



Case No; 2600427/01


15. In section 7 Part 2 of the agreement there are provisions as to the limits on time spent flying by pilots. This states that for reasons of avoiding fatigue pilots would not be required to fly more than three consecutive duties that occur in the period 0100 to 0659 local time.

16. Where accommodation was provided for pilots within 15 minutes travel time of the airport the prohibition covered duties occurring in the period 0100 to 0559 local time.

17. British Midland had introduced a written Code of Conduct for flight crew and other staff. This document, although not specifically agreed with Captain Leslie, set out procedures for resolving differences between flight crews and ground staff dealing with crewing of aircraft.

18. This in broad terms required disputes over crewing of aircraft to be referred to line managers by ether the pilot or the crewing department. If the dispute remained the duty should be completed and differences resolved afterwards.

19. Captain Leslie was licensed to fly aircraft by the Civil Aviation Authority (CAA) and its USA equivalent. The CAA licence required him to satisfy the CM from time to time as to his medical fitness to fly aircraft. We saw examples of his licence with the fact that medical examinations had taken place recorded upon them. Captain Leslie attended at a G.P’.s surgery for these medicals. The doctors at that practice were authorised and trained to provide acceptable medical examinations of pilots on behalf of both the CAA and its USA equivalent, Attending the same practitioners for these medicals also had the advantage of continuity from one examination to another.

20. The normal course of events was that British Midland would remind pilots of the need to have their medicals renewed and thereafter the pilot would choose which medical practitioner to go to.

[Grotehaasje]

21. The CAA as well as licensing pilots and aircrew also determined the way in which British Midland and ether airlines operated their services. In particular this included limitation on flight times for pilots such as Captain Leslie. There was a document issued by the CAA called CAP371 which prohibited flying more than three “early starts" unless hotel accommodation was provided within fifteen minutes of the airport. This requirement was reflected in the terms of the AFS,

22. On 28 July 2000 British Midland produced a roster for Captain Leslie which set out his work programme between 12 August and 8 September 2000.

23. During the early part of that period Captain Leslie was scheduled as away from work due to holidays and other leave. He was to return to flying with effect from 29 August 2000. His work for that day and the following three days involved him flying aircraft between East Midlands Airport and Dublin. Frankfurt, Paris and




Case No: 2600427/0 1

Edinburgh. Captain Leslie saw this schedule by the weekend of the 26/27 August 2000 and formed the view that the schedule required him to fly four successive days of early starts. His interpretation of this depended upon his belief that the hotel at which British Midland arranged for him to stay overnight in Edinburgh was more than fifteen minutes travel time from the airport. It was common ground between the parties that if the airport was more than fifteen minutes travel time away from the airport then his schedule involved four consecutive early starts and was, therefore, not permissible under flight limitations imposed by the CAA and also the AFS.

24. Equally, it was common ground that if the hotel was within fifteen minutes travel time then his departure time of 0445 hours would not qualify as an early start in Edinburgh and the schedule was permissible.

25. The hotel used was originally served by dedicated transport to the airport. There had been no difficulty in travel time exceeding fifteen minutes with that dedicated transport However, the crews were later required to use a hotel bus service. This change in practice increased the travel time beyond fifteen minutes. For this reason Captain Leslie believed that he was rostered for four early starts which was not permissible according to the AFS arid CAA rules.

26. On 28 August, the day before he was due to fly the first shift of the roster, Captain Leslie sent an e-mail message to Karen Dawson In the Crewing Section of British Midland. This note was also copied to Jan Benson in the same section. He made the point in the e-m& that he viewed the roster as not complying with CAP37I and he asks that the legality be checked and “alleviate my worries.” He makes the valid point that “if we are ignoring the approved FTL (Flight Time Limitations) Agreement we could find considerable amounts of egg on our faces if we have an incident.” He refers to the CAA taking a serious view of it. The ‘point of ‘contact in relation to such issues was the Crewing Section as was confirmed in the evidence we heard as well as the written procedures.

27. Captain Leslie went into the airport at British Midland on 1 September 2001 making telephone calls to Crewing Section on the way and try to resolve matters without success. We ware told that an Operations Manager was available twenty-four hours a day. There is in the bundle an Operational Notice dated 29 August 2000 confirming this. However, the correct procedure as far as Captain Leslie was concerned was to report to the Crewing Section, which he did. He attended the airport on 1 September 2001 and refused to fly.

28. On 31 August 2000 he had left a written note to his line manager, Captain Lawrie in his pigeon hole at East Midlands Airport making the same point namely, that he would refuse to take the flight because it was an illegal roster and that he would file a safety report. The tone of the message, which is hand written, is measured and ostensibly reasonable. In addition, Captain Leslie sent messages to an internet site called “One List” the guidelines of which we read. This was operated for pilots at British Midland. They were the only people who had access to the site and could only gain access by registration.





Case No: 2600427/01



29. We read the messages sent to British Midland pilots on the One List saying that he was required to fly four early flights and pointing out that anybody on standby should “be prepared to be called out.” He makes reference to “Richard”, namely Richard Hills, as Senior Manager and asks that he does something about it if he is “still around”. He says that he is a tired pilot refusing to fly and that he would be filing an air safety report to British Midland and a flight Time Limitation violation report to the CAA. He says that he is trying to be reasonable with the Crewing Section but calls and messages were not being answered. He points out that he has spoken to the British Airline Pilots Association (BALPA) and the CAA and, in his view, British Midland was infringing the FTL rules. He raises issues about insurance both personally and in relation to the aeroplane if there is a violation of flight time limitations.

30. Captain Hills, although a Senior Manager at British Midland, had access to the One List site. Apart from this the “One List” site was considered to be a site where pilots could communicate and it was common to exchange banter between the pilots.

31. Prior to his refusal to take the flight on 1 September 2000 Captain Leslie had checked the position with BALPA and the CAA by telephone. in due course Captain Leslie did file an air safety report with British Midland complaining of the rostering duties being in breach of the approved FTL Scheme and including details. This was not actioned by British Midland at any time to Captain. Leslie’s knowledge. In total, he had contacted Crewing, spoken to a Mr Thomas at the CAA, Shaun McHugh at BALPA and sent e-mails to Karen Dawson and Jan Benson in Crewing. He also tried to contact Fraser Sharman, Crewing Supervisor but was only able to make contact with an answering machine.

32. On 1 September 2000, before his arrival at East Midlands Airport, Captain Leslie telephoned ahead to say he would not be flying the scheduled flight. However, on his arrival he was expected to fly as scheduled but Captain Leslie refused to do this. The result was that the flight was delayed whilst a standby pilot was transported from Birmingham Airport to East Midlands. This caused delays to the flight in question and elsewhere in the British Midland schedule.

33. On 4 September 2000 Captain Lawrie learned of Captain Leslie's refusal to take the flight on 1 September 2000. He had by then seen the letter left for him by Captain Leslie on 31 August 2000. He made enquiries of the Personnel Manager, Rhona Coe, who advised on 5 September 2001 that the correct procedure was to hold a meeting to determine the facts. Accordingly, the same
day, Captain Lawrie telephoned Captain Leslie and asked him to attend such a meeting on 7 September 2000. On 5 September 2000 it was agreed that Captain Leslie would remain “off programme” in other words he would carry out no flying duties from then on. He had between 1 September 2000 and 5 September 2000 been engaged in training duties. Being “off programme” was not a suspension although it was similar in that Captain Leslie was given full pay but not actually required to fulfill any duties,




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34. On 7 September 2000 Captain Leslie attended the meeting at British Midland headquarters with Captain Lawrie, Rhona Coe and Captain John Robertson, London Heathrow Base Manager. On his arrival he formed the opinion that what he had expected to be a chat to iron out difficulties was In fact a formal meeting. He formed this view because three people were there, one from Personnel and Mr Robertson from Heathrow. Captain Leslie said that the roster provided to him contravened CAP37I, the CAA regulation on light times. He said that was because an early bus from the hotel to the airport meant that he was expected to do four consecutive early flights. He said that he had raised his concerns with the Crewing team. Captain Lawrie asked If he was aware of the Code of Conduct which required a duty to be completed and, thereafter. the issue raised with the line manager. Captain Leslie said that this Code had not been agreed with him nor agreed with BALPA.

35. The Code of Conduct provides that if there is a disagreement over duty assignments then this should be raised with a line manager. A second opinion could be sought from line managers if disagreement remained. The Code of Conduct had been introduced to try and avoid disputes Interfering with service provision and also to avoid loss of good relations in the workplace.

[Grotehaasje]

36. We saw notes taken of the meeting on 7 September 2000. Captain Leslie gave details of his complaints and what he had done to pursue them. They are recorded as a measured exchange of views and there was no record of any untoward appearance or behaviour on Captain Leslie’s part. In fact the notes end with Captain Leslie saying it may have been an “oversiqht on my part not to contact a Manager.”

37. Captain Lawrie determined that the matter required further explanation ‘and so he telephoned Captain Leslie on 8 September 2000 and advised him to attend a formal disciplinary interview on 13 September 2000. He described Captain Leslie as angry and aggressive and when told that he could be accompanied asked that a CAA or BALPA representative he present. He also said that he wanted to be represented by a solicitor.

38. On 9 September 2000 an e-mail was sent by Captain Leslie saying that Captain Clarke would represent him and that he had made BALPA aware of the position. A letter was sent by Captain Leslie 11 September 2000 to Austin Reid, Group Managing Director stating the position and complaining of a lack of information on what he is accused of and the formal nature of the meeting on 7 September 2000.

39 On 11 September 2000 a letter was sent by Captain Lawrie requiring him to attend a meeting on 13 September 2000. This was stated in a further letter from Rhona Coe of 12 September 2000 as being to ascertain the facts and that he is “off programme.”




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40. As Captain C!arke could not attend the meeting on 13 September 2000 it was postponed to 25 September 2000. What happened at the meeting was in dispute between the parties. we read the notes prepared by Rhona Coe and also notes by Captain Leslie, Apart from Captain Clarke being recorded as shouting a response at one point the minutes record Captain Leslie stating his case and nothing is recorded as to Captain Leslie’s conduct or attitude. We preferred Captain Leslie’s notes of the meeting which are more detailed.

41. On 27 September 2000 Captain Lawrie tried to contact Captain Leslie and through Captain Clarke arranged a further meeting for 29 September 2000. This meeting was attended by Captain Lawrie, Rhona Coe, Captain Robertson, Captain Clarke and Captain Leslie. It was explained that Captain Leslie would be given a written warning for the events of 1 September 2000. At the meeting Captain Leslie handed in a letter instituting an appeal. The ‘warning was confirmed by a letter of 29 September 2000 which was written after the meeting. The letter complains of the manner in which Captain Leslie’s complaint about FTL was raised both in the reference to the Internet site and the language used in relation to Chief Operations Manager Hogan and Flight Officer Hill. There is nothing, however, in the letter to record that Captain Leslie was considered unable to fly. indeed, Captain Lawrie said in evidence that he hoped that Captain Leslie would return to work the next day.

42. lt was an integral part of the “One List” to allow banter and free communication between parties. Captain Hills had confirmed when joining that he had understood this and that he was potentially open to banter criticising him if the pilots so chose. Captain Leslie’s appeal letter was repeated to Captain Linekar by a letter of 1 October 2000. However, at the end of the meeting on 29 September 2001 what was said between the parties was a matter of significant dispute. We heard from Captain Lawrie, Captain Leslie and Captain Clarke about this. Captain Lawrie reported that Captain Leslie had said he was “too stressed to be near an aeroplane.” We do not believe that Captain Leslie said this. It would be hard to understand how Captain Lawrie would be prepared to let him fly an aeroplane the next day if this was the case.

43. We find as a matter of fact that what was said was that whilst the disciplinary process continued, and it should be borne in mind that at the meeting he had already notified his intention to appeal, it would not be appropriate for Captain Leslie to fly

44. It was apparently standard practice for a pilot to be taken off programme during disciplinary action of any description. The fact was, therefore, that he would not be flying in any event as an appeal was continuing. It was dear at the meeting that Captain Leslie did not accept the written warning. Captain Lawrie expected Captain Leslie to fly the next day despite his appeal being notified that day. We accept what the applicant, Captain Leslie and Captain Clarke said that Captain Leslie did not use the word “stress” in such circumstances. We accept their version of events that Captains who are pilots would not use an expression like that in such circumstances. We. accept that British Midland did give a




Case No: 2600427/0 1


warning to Captain Leslie for the way he had raised his immediate concerns, in other words, not with the Flight Operations Manager and also by making communications to the “One List.” The tone and content of the “One List” communications were also reasons for that warning.

45. The appeal letter of 29 September 2000 was amended as to addressee only on 1 October 2000. in that letter Captain Leslie points out the procedural errors on British Midlands part and points out That he is entitled to two stages of appeal against the decision. He asserts that the procedures did not require him to give any grounds for his appeal but simply to give notice of it.

46. By 9 October 2000 a letter was sent to Captain Leslie saying that the appeal would be dealt with by Captain lain Cullen.

47. By a letter of 13 October 2000 Captain Leslie was notified of the hearing to take place on 18 October 2000 and was advised of his right to have a colleague accompany him at the meeting.

48. By an e-mail of 13 October 2000 Captain Leslie pointed out that he was entitled to more than one appeal hearing. This was accepted by Captain Cullen. Captain Cullen heard the first appeal, therefore, on 18 October 2000. The meeting was attended by Captain Cullen, Captain Clarke, Captain Leslie and Ms Mathewman. Captain Leslie produced a document for the appeal and was able to make additional comments. He sets out his grounds of appeal in detail and his version of the facts in an orderly manner.

49. At the end of the meeting Captain Leslie was advised that matters would be considered further and a letter would be sent to him advising him of the result. Captain Leslie is recorded as saying he felt that he was a safety risk as his mind ‘was elsewhere. This was the reason he had not flown. He and Captain Clarke agreed it was sensible not to fly and Captain Cullen concurred with this. Captain Clarke had no hesitation in expressing his view that he would have no reluctance in flying with Captain Leslie at any point of the process provided that he had a period of rest immediately after the meetings. He said that after a rest to the next day there would be no problem in flying with Captain Leslie as a pilot. There was clearly no decision, in our view, by Captain Cullen to stop Captain Leslie flying. Consensus was reached by three pilots who were in the best position to know. Captain Cullen never raised any question of him being too stressed to fly. All that was expressed was a perception of his anger and frustration during the meetings. We do not think that this was anything above and beyond what might be expected in all the circumstances.

50. On 19 October 2000 Captain Leslie went for a routine medical with the CAA approved doctor to confirm his continuing fitness to fly, He was passed as fit to continue flying, his next medical examinations were then due in April and July2001

[Grotehaasje]

Case No: 2600427/01

51. On 20 October 2000 Captain Leslie was advised that his appeal had failed. His warning was upheld and British Midland were stated to be unimpressed with the “One List” communications.

52. On 23 October 2000 Captain Leslie appealed. Thereafter, he made complaint on 13 November 2000 by e-mail that the appeal was not being actioned and complained of the procedures adopted by the respondent as being “ramshackle.”

53. On 14 November 2000 the date of appeal was notified, Captain Leslie wrote to John Morgan Director of Safes and Marketing (who was to hear the appeal) on 22 November 200 by e-mail saying that the original complaint against him for not flying had not been proceeded with and the remaining matters were minor. He asks in effect that his warning is withdrawn.

54. On 23 November 2000 Captain Lawrie tells Damien Fletcher from Personnel about Captain Leslie saying he was too stressed on 29 September 2000. He sent an e-mail to Mr Morgan recording Captain Leslie saying he was “too stressed to go near an aeroplane”.

55. A further appeal hearing took place on 24 November 2000 and a letter sent dated 1 December 2000 confirming the appeal was refused. By a letter to Captain Leslie on 7 December Mr Morgan states that British Midland are concerned at the stress Captain Leslie is under and that British Midland would need to be sure that he is fit to return to work, ie to return to flying. The letter required a meeting to take place between Captain Lawrie and Captain Leslie. However, a letter of 7 December from Mr John Morgan, to Captain Lawrie was more specific and referred to the stress levels of Captain Leslie. In block capitals it said that Captain Leslie “Must not resume flying” until he has been medically certified as fit to do so.

56. On 6 December 2000 Captain Lawrie invited Captain Leslie to a meeting on 8 December. Rhona Coe was present at the meeting between Captain Lawrie and Captain Leslie. Prior to the meeting no mention was made to Captain Leslie of the requirement of a medical examination being set. in addition, before that date a review of all hotels used by flying staff had been carried out of which hotels were agreed into three categories, either within fifteen minutes of the airport, within fifteen minutes subject to dedicated transport being arranged and outside fifteen minutes. The hotel in Edinburgh was within the category which was within fifteen minutes only if dedicated transport was provided. This, in effect, justified Captain Leslie’s view which hid led him to refusing to fly. in other words, the process complained about by Captain Leslie did not comply with the CAA or AFS Flight Time Limitations.

57. Captain Lawrie sent a letter to Captain Leslie dated 8 December 2030 requiring three things of Captain Leslie; to accept the disciplinary sanction, to express a wish to move forward by improved communication skills with management and also confirm that he would attend a medical appointment,




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The letter confirmed that the medical was in addition to and independent of his valid CAA Class I medical. The letter points out that an appointment had been made with a Dr Medley in Nottingham for 12 January 2001. The letter does not say that this is due to Captain Leslie’s stress but that it is his attitude which continues to cause British Midland concern, Captain Leslie was required to confirm his agreement to these conditions by 15 December.

58. The mention of the requirement to have a medical examination during the meeting on 8 December caused Captain Leslie to leave the meeting abruptly arid Captain Lawrie described him as being “enraged.” Captain Lawrie described Captain Leslie as sifting in his car for a period after the meeting during which, it appeared to Captain Lawrie, Captain Leslie was composing himself. He accepted in evidence, however, that it was quite explicable by Captain Leslie making a telephone call. We accept Captain Leslie’s account that he was merely making a telephone call with the door of the car open. No doubt he did need to calm down after the meeting but this was due to being asked to do something which his contract did not require and for which there was no precedent with other pilots.

59. On 11 December 2000 Captain Leslie’s solicitor wrote to British Midlands saying he was fit to return to work and protesting about the disciplinary process. The solicitor says that he is certified as fit and that there is no need for a medical. Captain Leslie had previously advised this by an e-mail of 5 December 2000. A reply was made on 14 December 2000. In this letter British Midland say that this is not the first time that Captain Leslie’s attitude and behaviour caused concern. This apparently referred to an unrelated incident which about his attitude and behaviour. The letter points out that it was said that Captain Leslie was unfit to fly throughout the disciplinary process and, he would not fly during the course of any disciplinary action. In any event, if he was too stressed to do the job he would not be allowed to do it.

60. By a reply of 14 December 2000 the solicitors pointed out that Captain Leslie could not be compelled to have a medical.

61. On 15 December 2000 by e-mail Captain Leslie complained of the tone and content of the e-mail which he described as offensive. Again, on 15 December 2000 a letter was sent to the solicitors by the Personnel Manager, Darnien Fletcher.

62. On 16 December 2000 Captain Leslie ccnfirmed that he had had his medical for his CAA licence renewed and pointed out to British Midland that the requirement to have an additional medical was unreasonable and unfounded. He pointed out that he had consulted BALPA, who agreed with his view. He reminds British Midland of the terms of AFS and states that denying his return to work is unfair.

63. On 21 December 2000 it was pointed out by Mr Leslie’s solicitors that the doctor nominated by British Midland was not approved by the CAA. A letter of



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instruction was sent to Dr Medley on 9 January 2001 by Rhona Coe. This appointment was confirmed as still open to Captain Leslie on 12 January 2001. In the letter of instruction she describes Captain Leslie during the disciplinary process as physically shaking and with extreme redness, We do not accept this was the case. We do not accept that he was enraged to the point of incoherence as said by Rhona Coe. We accept the evidence of Captain Clarke and Captain Leslie. Captain Clarke witnessed anger and frustration on Captain Leslies part but at no time was Captain Clarke concerned about Captain Leslie’s demeanour. He stated his willingness to fly with Captain Leslie if required.

64. On 11 January 2001 Captain Leslie’s solicitor sent a fax message to British Midland saying it was not necessary for Captain Leslie to have a medical and makes clear that he holds a medical fitness certificate to say that he is fit to fly. Replies were sent to the solicitors arid Captain Leslie on 16 January 2001 confirming that British Midland would not let Captain Leslie fly without a medical examination, it was pointed out that a review would take place on 6 February 2001 and that this review could possibly result in termination of Captain Leslie’s employment. Responses were requested by 24 January 2001 so that these could be considered.

65. On 16 January, Captain Leslie went through a further medical with the CAA approved doctor which confirmed his fitness to fly. The medical had been conducted at the expense and instigation of Captain Leslie before it was due in the ordinary course of events. Copies were provided to British Midland on 19
January2001.

66. On 23 January 2001 a fax was sent by Captain Leslie to D mien Fletcher saying that Dr Medley was not qualified as a CAA medical examiner and it was unlikely that he had any aviation medics; qualifications. This was not disputed by British Midland. In fact the doctor had been nominated by it’s solicitors. Captain Leslie points out that he had his medical examination by a different doctor in the practice than the one he had seen in October 2000. The fax pointed cut in a polite way that British Midlands fears may be allayed by the medical

67. There was a doctor employed by British Midland, Dr Cresswell, who was a pilot medical officer. We were told during the hearing that British Midland did not refer Captain Leslie to him because of the potential for Dr Cresswell to fly as a pilot with Captain Leslie. We did not accept this as persuasive. in our view there was no reason why Captain Leslie could not have been referred to Dr Cresswell. We accept what Captain Leslie and Captain Clarke said. Captain Clarke himself explained he had been subject to an intimate medical examination by Dr Cresswell shortly before flying with him and this presented no difficulties for him or Dr Cresswell. Captain Leslie agreed with this. Captain Cresswell was obviously a pilot as well as a qualified doctor approved by the CAA and best able to judge.

68. After the close of the evidence put before the Decision Hearing on 9 October 2000 a letter was received from Dr Cresswell enquiring as to the











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evidence given. He had been told that evidence had been given that it would not be appropriate for him to conduct medical examinations of pilots. He could not understand this as he was the pilot medical officer. This confirmed the view already taken by the Tribunal from the evidence heard. We also understand that there was a Doctor Turnbull at the CM to whom Dr Cresswell could refer any pilot if necessary.

[Grotehaasje]

69. We were also told of a flight simulator test which was a realistic attempt to simulate a major stressful incident for pilots and other alrcrew to see how they could cope under pressure. Such tests were part of pilot training and updating. Indeed, if Captain Leslie was to return to flying after a three-month gap he would have had to have gone on the flight simulator training before tackling the real thing. We accept the evidence of Captain Cresswell and Captain Leslie that this was a classic opportunity to observe him in stressful situations and to respond accordingly if there were any concerns raised. He had previously performed the tests with exemplary marks.

70. Again, a Captain of an airliner also has a co-pilot and it would be possible for that co-pilot to observe and monitor the Captain’s performance as necessary.71. On 24 January 2001 there was a meeting between Captain Lawns and Damien Fletcher in which it was decided that there was no prospect of Captain Leslie agreeing to a medical examination and he would not, therefore, be allowed to return to work. He was summarily dismissed. British Midland relied on a right to terminate his employment under Part 1 o Section 18 of the Agreement for Service.

72. On 26 January 2001 a letter was sent to Captain Leslie informing him that his employment was terminated and gave reasons.

73. Captain Lawrie and Damien Fletcher decided that there was no room to manoeuvre over the medical and that there was no possibility to employ Captain Leslie elsewhere. On two occasions they considered that he had admitted to being stressed and unable to fly.SUBMISSIONS

74. We considered the detailed submissions put forward in writing by each of the parties prior to 9 October 2000.

[Grotehaasje]

CONCLUSIONS

75. We consider that there was a breach of contract by the respondent in their dealings with Captain Leslie. Considering first of all the medical examination. The contractual requirements placed upon Captain Leslie were to meet the standards set by the CAA Captain Leslie had this clearance at the outset of the disciplinary process at the beginning of September 2000, it was renewed in the ordinary course of events in October 2000 and then again voluntarily renewed by


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Captain Leslie on 16 January 2001 in an attempt to satisfy British Midland. We acknowledge that an employer has a duty to have a safe system of work and safe fellow workers for their other employees. This duty is clearly apparent in the case of an airline where mistakes can have drastic consequences. However, we believe that there has been a breach of duty of trust and confidence by the employer in this case in requiring a further medical from Dr Medley. The most upsetting incident is: the written warning had been some months prior to the request for the medical. We do not believe that there was any good reason for the respondent to require a psychiatric examination of Captain Leslie. In fact, during the course of the process no such medical was required between August and December 2000 tire appointment was in January 2001). During that time the respondent had been happy to allow Captain Leslie to return to flying duties. This was the case at the time when the written warning was given.

76. There was no particular reason to require a report specifically from Dr Medley. Apparently British Midland asked their solicitors as to who could provide a report. There was no indication that Dr Medley had the necessary qualifications. No consideration was given to referring Captain Leslie to Dr Creswell. Dr Medley was not CAA approved. The referral to the psychiatrist
-was seen as prejudicial and potentially having an adverse effect on his career by Captain Leslie. The letter sent to Captain Leslie after the appeal simply says that he is required to attend the meeting. Noticeably it does not advise him of a requirement to see a psychiatrist. We believe this is indicative of the tact that British Midland resalised that they were suggesting something which would be clearly unacceptable to Captain Leslie. We believe the duty of trust and confidence implicit in the contract of employment was broken by requiring a medical examination before returning to flying. We do not accept the choice of the doctor as reasonable but more than that, it broke the duty of trust and confidence necessary in an employment relationship. We refer specifically in this respect to Bliss above.

77. So far as the dismissal is concerned we believe that this was in breach of contract in that no notice was given. There had been no breach of the contract by Captain Leslie as the contract written terms did not require him to satisfy a higher standard of health than- that required by the CAA. In fact there had been a breach of contract by the respondent not by Captain Leslie. The dismissal was for the reason of refusing to have a medical examination such examination not being required by the contract. As this was not a contractual requirement refusal by Captain Leslie was not a breach of contract. in those circumstances, the contract could only be terminated by the three-months’ notice as provided in the contract.

78. Turning now to the fairness of the dismissal. We have applied Section 98 Employment Rights Act 1996, We find that the reason for the dismissal is as stated by the respondent. We do not believe that the dismissal was for the reason of refusing to take the flight in September 2000 nor for his publicity of that event amongst other pilots as set out above. We believe that the reason given by the respondent is the true reason. We go further and find that the reason

15

given by the respondent is reason Within Section 98(1) in that It is for some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

79. We can foresee a situation where it may be appropriate to require a medical examination such as was required by the respondent. Our finding, however, is that this was not such a situation.

[Grotehaasje]

80. Applying Section 98(4) of the Act we do not believe that the respondent acted reasonably in treating it as a sufficient reason for dismissing Captain Leslie. The respondent has substantial resources available to it.

81. We do not believe that British Midland set out to dismiss Captain Leslie for a health and safety reason. If that was their intention then, of course, Captain Leslie could have thwarted it at any time by accepting the written warning given. it would have expired in six months and to all intents and purposes that could have been the end of it. On the balance of probability we believe British Midland’s version. We do believe they handled the warning and the dismissal badly to the point of unfairness. The reason was that Captain Leslie had refused to attend a medical. Captain Lawrie and Mr Fletcher agreed between them that the Captain’s choice of medical adviser was displaced by the needs of the situation. We bear in mind that Mr Fletcher was, as were all of the Personnel Department, unused to dealing with pilot issues.

82. We have already found that the requirement to see Dr Medley was in breach of contract. We do not find that the dismissaI was for a medical reason. There is in our finding a distinction between the two. British Midland could not and did not say that Captain Leslie was unfit to fly. Their case was that they wanted to ensure he was not unfit to fly before he resumed flying duties. This was based on their observations of him in the disciplinary process which led to his disciplinary warning and his appeals against that.

83. As the reason is of a kind such as to justify the dismissal of an employee holding the position that Captain Leslie held. It is, therefore, a potentially fair reason.

84. We find that the dismissal is unfair. We take into account that British Midland is a substantial employer with substantial resources available to it at the time of the process leading to Captain Leslie's dismissal. !t had a dedicated Personnel Department and in-house medical adviser. It was s willing to buy in the advice of a consultant psychiatrist.


85 We find that the dismissal was unfair in the following respects:

(a) The failure to make use of the company doctor in determining whether Captain Leslie was fit to fly. This was not even explored with Captain Leslie and would have provided a possible neutral way out of the

16

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difficulties which arose. No doubt Dr Cresswell could have recommended a psychiatric opinion if such was required.

(b) The failure to consider the use of an appropriate practitioner at the CAA Dr Turnbull. An assumption seemed to have been made that there would be a tong waiting list. Both this referral to Dr Turnbull and Dr Creswell would have meant that a practitioner with appropriate experience and qualifications could give an opinion.

(C) The referral to Dr Medley. This was seen as intrusive and also having the potential to attach some stigma to Captain Leslie in the workplace. We note that when Mr Morgan wrote to Captain Leslie after the final appeal there is no mention of a psychiatric examination, only a meeting. We think this says that British Midland were aware of the way this suggestion would be seen by Captain Leslie and wanted to do it face to face. This did not make it any easier We believe the psychiatric examination was unjustified and was based upon assumptions of Captain Leslie’s conduct which were not borne out in reality. We believe it was an over reaction.

(d) The failure to hold a disciplinary hearing before a decision was made to dismiss. Captain Leslie had been invited to persona! hearings for the earlier matters leading to a warning but only written submissions for a hearing where he was dismissed. A personal meeting may have impressed the seriousness upon Captain Leslie and led to more meaningful discussions and a compromise being reached with another medical examination or other checks on Captain Leslie’s performance. A medical opinion could have been sought as to whether a psychiatric examination was required.

(a) The failure to consider Captain Leslie’s stress levels and ability to fly by wav of flight simulator tests.As Captain Leslie would have been required to do these before returning to actual flying we see this as a first practical step available to British Midland before Captain Leslie was allowed to fly and before a final decision was made to terminate his employment for refusing a medical. The insistence on seeing a psychiatrist with no track record so far as anyone knew in aviation medicine was not appropriate to resolve even the perceived problem British Midland had with Captain Leslie As we have found above, we believe British Midland exaggerated his apparent anger and frustration at the disciplinary procedure failings into something they were not. We heard from Captain Clarke who we found to he a credible witness that Captain Leslie's conduct during the disciplinary hearing and appeals did not cause him concerns. He, of course, could be viewed as partisan as he had supported Captain Leslie throughout. However, he said that he would have taken a different stance to the flight schedules provided to Captain Leslie in August even though he believed Captain Leslie was right to refuse to fly. He need not have disclosed that if he wished to make

17

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Captain Leslie’s case stronger by misleading us. He told us that if he was a co-pilot he would have been happy to accompany Captain Leslie on a flight as soon as a day after each hearing. In that situation his life and many others would have depended on Captain Leslie. We found that compelling. Mr Morgan as Marketing Director, who seemed to be the one who drove the need to have a medical examination, had no such experience neither did Mr lietcher. Although Captains Cullen and Lawrie did have such experience they were not moved to make such recommendations themselves at the time they observed Captain Leslie's behaviour. Captain Leslie in our finding showed only frustration at the process arid the refusal to allow him to return to flying. Captain Leslie was not classified as sick at any stage, neither were any medical certificates as to sickness sought. This reinforces our belief that with hindsight British Midland over emphasised Captain Leslie’s behaviour. We do not believe that Mr Fletcher and Captain Lawrie properly considered the effect of Captain Leslie having had two medical examinations by a CAA approved and qualified doctor. This was significant in that he was approved as able to fly but also shows with the medical on 16 January 2001 that Captain Leslie was willing to meet them half way at least.

f. The process leading the formal warning was flawed by failing to observe procedures. The initial informal meeting on 7 September 2000 was far from informal and should have been notified as a formal meeting to Captain Leslie in advance so that he had equal standing in it. CaptaIn Lawrie was accompanied by two advisers, Captain Leslie was alone. British Midland complained of the banter on the "One List” when it was intended as such a forum and identified as a medium for pilots to communicate in an informal and sometimes critical and jocular manner, Further British Midland failed to notice a second right of appeal until Captain Leslie pointed it out. British Midland failed to listen properly to what Captain Leslie was saying about the appropriateness of him flying during the disciplinary process. British Midland failed to acknowledge the steps taken by Captain Leslie to resolve matters before his refusal to fly. Although t was necessary to point out to pilots in a memorandum of 2S August 2000 that a manager was available 24 hours a day there was no evidence that Captain Leslie had seen that by 1 eptember 2000 and he took steps to deal with matters through the usual channels. These matters did not help the situation when the final decision was being taken to dismiss.


g. Relying upon previous conduct Leslie which had led to him apologisinq to another staf member. This was wholly untested in any disciplinary’ forum.

86. In reaching this conclusion we have reminded ourselves that safety is of paramount consideration in the aircraft industry and the consequences of an air disaster Should British Midland fail to adequately protect its operation from its

18

employees failings. We do not believe they acted reasonably in trying to do this in the case of Captain Leslie’s employment. We believe Captain Leslie acted reasonably in refusing to submit to a medical examination by Dr Medley. There were other choices for British Midland as we have set out above. There was a right for pilots to choose their own medical examiner and this is what Captain Leslie wanted to do. Dismissal was not within a range of reasonable responses open to a reasonable employer faced with Captain Leslie’s refusal.

87. Having found the dismissal unfair we now consider whether there is any reason to reduce Captain Leslie’s compensation because of any contribution to his dismissal by his conduct. We do not find that Captain Leslie acted other than properly in this matter. We take into account that pilots, including Captain Leslie, are intelligent and well paid employees, articulate and able to use their intellect and ability to express their position clearly. British Midland, however, drove the process which led to his dismissal and should have made more effort to accommodate his opinion as set out above. We do not find that there was any culpable or blameworthy behaviour by Captain Leslie. He was entitled to refuse the medical and did so. He tried to meet them halfway by having a CAA examiner medical when one was net necessary. His cornpensation should not, therefore, be reduced by reason of any contribution to his dismissal.

**************************************************

[TAAMinator]

The thing that concerns me about BM ... and commercial aviation, in general ... is the blatant disregard for rules by aircrew schedulers and management, and, the threat of dismissal and replacement from the line of starving and willing pilots if the currently-employed pilots do not comply and cheerfully violate the same rules.

Rules are written in blood. Crew rest rules are the result of air crashes where people died. Uninterrupted rest rules are the result of air crashes where people died. Time zone rules are the result of air crashes where people died.

Scheduling and management seem to regard rules as annoying violatable verbiage.

However, when we investigated the <A> crash, we noted six or seven rules violated by aircrew scheduling. Aircrew scheduling said that they asked the crew and the crew said it was okay. The crew was dead and could not defend itself.

However, when we investigated the <B> crash, we noted six or seven rules violated by aircrew scheduling. Aircrew scheduling said that they asked the crew and the crew said it was okay. The crew was dead and could not defend itself.

However, when we investigated the <C> crash, we noted six or seven rules violated by aircrew scheduling. Aircrew scheduling said that they asked the crew and the crew said it was okay. The crew was dead and could not defend itself.

However, when we investigated the <D> incident, we noted six or seven rules violated by aircrew scheduling. Aircrew scheduling said that they asked the crew and the crew said it was okay. Now, I was ON the aircraft involved. I was there when the crew said that, no, in fact, the violations of the rules were not okay. I was there when the aircrew schedulers threatened the aircrew ...

Hmm.

So, on Captain Leslie's fateful day ...

Captain Leslie was, once, again, faced with a willful violation of aircrew scheduling rules. Captain Leslie, once, again, pointed out the willful violation of aircrew scheduling rules. Captain Leslie was, once, again, told to sit down and shut up and fly or get fired.

And, people are bashing on the now-unemployed Captain Leslie who is alive [as are his passengers from that fateful day] because of what? He obeyed the rules?

Fatalities: All.

Statement: Aircrew scheduling stated that they asked Captain Leslie if it was 'okay' to violate the 'four early flights in a row' rule. Aircrew scheduling stated that Captain Leslie did not protest and said it was 'okay.'

*

Yaknow ... If I am not mistaken, Captain Leslie even tried to get state-of-the-art computerized aircrew scheduling software to help the aircrew schedulers; however, the aircrew schedulers could not be ... bothered?

So, Captain Leslie even tried to do the schedulers' job FOR them? And the thanks he gets is ... unemployment and a section 8?

Awesome!

Kinda reminds me of "Animal House":

"Face it, you screwed up, you trusted us!"

[flappless]

Awesome!

"Animal House" wasn't a farce was it? <g>

You must remember that you are dealing with a management team who are incapable of communicating with their employees. It is very much a bully boy culture and RH although he came in on the 'wind of change' has demonstrated himself to be an expert. What has happened is just the midland way. Ultimately you - the paying public - need to look at all aspects of an airline before you fly with them - what emphasis do they put on crew rest and flight time limitations. If in doubt fly with someone else , you have the choice most of the time - I certainly do. Now what was the FTL document that Ryanair use ............................................

[Wig Wag]

The Employment Tribunal's report should is a 'tick list' of how to conduct yourself when confronted by an aggressive employer.

Essentially:

1. Stick to the rules at all times.

2. Confirm the purpose of any meeting with management in writing PRIOR to going into the office.

3. Have a witness present at all times.

4. Politely state your case and leave it at that.

Note that Captain Leslie did himself great service by being 'reasonable' in the eyes of the Tribunal.

I am so glad that all this is coming to light. It is dreadful of any airline to pressurise a Captain to break the rules. I had it done to me once and it was an appalling experience.

[KingoftheRoad]

What was it that they lied about Uncle Pete , I've read the report (0r at least the bits Grotehaasje has posted), but I can find no reference in the summing up.

And if it is true what penalties were awarded these people ?

Isn't this perjury ?

Or, have I missed something ?

[Arkroyal]

The whole story at last, thank you John.

Interesting is the weight the tribunal place on the AFS as a contract of employment.

There may be trouble ahead

[Son Of Piltdown]

Precisely. The AFS is a contract. Any challenge to it becomes a legal issue.

I do hope BALPA get a strong Gen Sec and soon.

Any word on the latest at New Road?

[Noisy Hooligan]

QAR ASR

Or should I say "Meat Head"?

Imagine this fictionary scenario:
After min rest in a crap hotel where sleep was interrupted, talked into a forth early roster (which means a report of BEFORE 0559 Local time which usually means waking up at 0400), an incident ocurrs on the flight and the Captain appears in court. The first question from the prosecution will be "Captain, why were you working outside the rules of the agreement between your Union and the Company, rules which are there to protect you from such instances as the fatigue of four early rostered duties?"

Where does the Captain stand? Nowhere...


If it is not written somewhere that you can only do 3 early duties in a row, then it is possible to be reostered it every working day for a month, and the Ba@#$%ds will F%^&ingwell do it too!
ANYONE who has had to do early duties (and it is much worse from LHR) knows that it is hard, and when it is mixed in with lates at the end of a week , even worse.

If you had not notices, the whole world is moving gently towards more "fluffy" working conditions and more leisure time APART from the airline industry.

IF WE DO NOT UNITE AND STAND UP FOR OURSELVES NOW, WE WILL LOSE GROUND AT AN ALARMING RATE AND END UP AS MANUAL WORKERS. DID YOU BUST YOUR ASS TO GET AN ATPL TO BE TREATED IN THIS WAY? I SURE AS f@#k DID NOT.

[scroggs]

John,
I've been away for a fair while and missed your news until now. Sounds like someone at last saw the real facts of the case and judged accordingly. That's excellent news, both for you and, though they may not appreciate it, your erstwhile colleagues!

Give me a ring and let me know what the future holds for you. All the best mate.

[BusyB]

Congratulations on your result at the tribunal. What criteria were used to decide the max compensation as it does not seem very generous for ending a Captains career with an airline? Does the Tribunal result leave open the possibility of a Civil Action for further compensation? Thanks for any information, I have colleagues in a similar situation.

[stargazer02]

YES I AGREE !!!!!!
i have read through the whole thread and the meathead QSR ASR hasn't reared his ugly head since....just shows what a fool he is.....he could atleast apologise for insulting the good name of the Capt involved...
Should we take a pole on it?????
:D :cool: :D

[Grotehaasje]

Back from holiday , I didnt fly bmi - thanks Excel for a very comfy ride to Dalaman and back - and many thanks for all the words of support. Scroggs iI'll give you a bell and try to catch you at home.

Additionally, I have heard from some long lost RAF mates which has been a most unexpected and pleasant bonus.

I have been asked to post the letter of dismissal by some former colleagues and also the other documents from the tribunal, which I will do in due course.

The dismissal letter is aposite in view of the changes in the bmi pilot's contracts being discussed on another thread.

May i repat however, that I have not made any changes to the wording of the documents, nor have I omitted anything; if the documents seem incomplete to anyone I cant actually add anything to make it more interesting as it would be unfair and irresponsible.

[FL390]

A nice bit of bedtime reading - I should have read it all in 5 minutes! :D

Well done - glad it has worked out for you.:)