JUDGEMENT HIGHLIGHTS

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For the full judgment please click here

The following are extracts taken directly  from the full Tribunal Judgment  which is in the public domain. For the avoidance of doubt The statements and findings of fact contained within are solely attributable to the Judge and members of Tribunal.

“The unanimous judgment of the tribunal is that:

  1. The complaint of detriment on the ground of making protected disclosures is well founded.
  2. The complaint of detriment on the ground of health and safety matters fallingwithin section 44 Employment Rights Act 1996 is well founded.
  • “The claimant was unrepresented at the final hearing”
  • The claimant referred to the respondent’s fatigue modelling programme and submitted that his effectiveness on 7th May was predicted to go to 70%, the equivalent of around four times the legal limit for drinking for flying”
  • “We find that it was very unusual to have a flight plan on the day which indicated that the duty would not be completed within the maximum FDP.”
  • ‘We find that the claimant suspected that the duty for 6”‘ May had been manipulated prior to that date to fit the maximum FDP of 12 hours 30 minutes’
  • We find that he genuinely held a view that he could not legally exercise discretion if the event which would lead to the maximum FDP to be exceeded was something known to the operator by the time the flight plan given to the Commander on the day of the flight was produced.”
  • ‘When asked by the Judge why no one went back to the claimant about his question as to how the duty time of 12 hours 30 was arrived at, which the claimant again raised in the pack he produced and sent to Mr Scadeng prior to the disciplinary hearing, Mr Scadeng replied that he viewed the email of 7”‘ May as about fatigue and his view about the rest was that it was “intended as entrapment” and that they needed to be cautious’
  • “The claimant said he brought to the respondent’s attention by reasonable means,i.e. an email to Roger Scadeng and a fatigue report, circumstances which he thought would be harmful or potentially harmful to the health and safety of himself, the crew and passengers. The claimant alleged that, highlighting the danger by email to Roger Scadeng and completing fatigue reports and refusing the 7″‘ May duty on safety grounds, he had been suspended for over five months. The claimant’s representative confirmed that the claimant believed he was suspended and facing a disciplinary because he had raised a safety issue”
  • “the real dilemma was the discussion I had with him the night before and decision making was not aligned to what our expectations of what the decision making process would be from a Commander”.
  • “The claimant suspected that the flight was rostered illegally and this belief was confirmed in the flight plan which came out which showed it was twenty minutes over
  • “It is common ground that the claimant was under an obligation not to fly if he knew or suspected that he was suffering from fatigue such that this could endanger the safety of the aircraft or its occupants and that he would commit a criminal offence if he did not comply with this obligation.”
  • “you sought to avoid the duties that had been planned for you and were dishonest about your motivation for not wanting to perform those duties”.
  • for all night duties/return from long haul sectors the working line dips below this dotted line due to the time of day so we cannot avoid operating duties in the zone due to the nature of the programme that we operate”

 

For the full judgment please click here ‘

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