while you are protecting your community, who is …therfu.org/wp-content/uploads/file/official...

While you are protecting your community,who is protecting you?

The RFU

- a professional organisation whose sole purpose is to ensure the best w

orking conditions for its mem

bers within the fire service

Legal Report 2005

in association with

RRFFUU LLEEGGAALL RREEPPOORRTT

This document has been produced to demonstrate just how important it is to have some form of representation/insurance while undertaking the role of a firefighter.

• The examples of personal injury cases listed have been handled by the RFU and their legal advisors, Howes Percival. We also give advice and assistance through Howes Percival on non fire service matters.

• There are also examples of employment law cases, where individuals have fallen foul of brigade procedures or policies, often through no fault of their own.

In an ideal world these incidents wouldn’t happen and even if they did your fire and rescue service would ensure that you are compensated for any financial loss or inconvenience incurred.

Well - this isn’t an ideal world, and unfortunately these incidents do happen, and quite a lot of them, as you can see from our examples. Fire and Rescue Authorities are not always as helpful to their employees as they should be. This document gives you examples of the predicaments the job of a firefighter can place you in. The list is by no means an exhaustive one, but is intended to give you an outline of just why is it so important to have a professional organisation behind you in times of a crisis.

Many of our members involved in these incidents never felt this would happen to them, but when it did, they were glad they had the backing of the RFU.

The mentality of, “It always happens to somebody else” can lead to a disastrous state of affairs when the unforeseen happens with no back-up. The RFU has over 28 years of experience in this field and our legal advisers are experts in understanding not only the role of a Retained Firefighter but the situation they can often find themselves in.

We believe that after reading this document you will appreciate just how important it is to have behind you an organisation with the clout and experience of the RFU. THE RFU – Retained working for the Retained!

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We receive many ‘phone calls from personnel who are not members, who suddenly fall foul of “the system” in some way. These individuals have been misled into believing it will never happen to them. But, don’t just take our word for it-look at some of the following extracts from official reports: “The treatment of RDS personnel has a detrimental effect on retention and contributes to the 10% annual turnover”

RReeppoorrtt ooff tthhee RReettaaiinneedd RReevviieeww TTeeaamm ttoo tthhee PPrraaccttiittiioonneerr’’ss FFoorruumm 2211//99//0044 “It must be clear to all that good leadership and management have been lacking in many respects”

TThhee FFuuttuurree ooff tthhee FFiirree SSeerrvviiccee:: RReedduucciinngg rriisskk,, ssaavviinngg lliivveess.. TThhee IInnddeeppeennddeenntt RReevviieeww ooff tthhee FFiirree SSeerrvviiccee DDeecceemmbbeerr 22000022 “Elected members and principle officers must demonstrate their understanding of the role and importance of the RDS, giving clear leadership to the service to ensure full integration. This could be achieved by:

(i) providing a supportive and enabling environment which recognises the special status of a group of people who are at least as much “volunteers” as they are employees

(ii) maximising the potential contribution that can be made by those on this system and mainstream this at local and national levels

(iii) identifying and sharing good practice

RReeppoorrtt ooff tthhee RReettaaiinneedd RReevviieeww TTeeaamm ttoo tthhee PPrraaccttiittiioonneerr’’ss FFoorruumm 2211//99//0044 “There is a need for a new approach to leadership within the Fire and Rescue Service, both from authorities and from senior managers within the Service. This needs to be underpinned by the effective development of staff to prepare them for management roles and to ensure that they have the skill to carry out the full range of management and leadership responsibilities”

TThhee FFiirree aanndd RReessccuuee SSeerrvviiccee NNaattiioonnaall FFrraammeewwoorrkk 22000044//55 “If Retained Firefighter was a Religion, Gender, Disability or Ethnic Grouping-it would have been unlawful to treat me in this way”.

EExx RReettaaiinneedd FFiirreeffiigghhtteerr,, wwhhoo ffeellll ffoouull ooff tthhee ssyysstteemm..

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RFU Legal Report 2005

EEXXAAMMPPLLEE 11 Our member attended an incident where it was known that acetylene cylinders were leaking in the boot of a car. Our member and another firefighter were ordered to open the boot to ventilate it but when the keys were turned in the lock, the acetylene cylinders exploded throwing our member backwards. He sustained bruising, injuries to his left hand, temporary loss of hearing and subsequent nightmares. The member returned to his retained duties after 2 to 3 months and became a full time RAF firefighter some 4 months after the accident. Liability was admitted by the Brigade. Proceedings were issued but the claim settled in the sum of £6,500.00.

EEXXAAMMPPLLEE 22 Our member was attacked by a full time firefighter whilst out socially. The attack was totally unprovoked but led to our member sustaining damage to his teeth. An application was made to the Criminal Injuries Compensation Authority and an award made of £2,750.00. The full time firefighter had been prosecuted by the police and had admitted to the assault and accordingly, it was thought that our member would have a very good chance of obtaining a judgment against the full time firefighter if civil proceedings were issued. However, it was decided not to pursue such an action in light of the full time firefighter’s probable inability to meet any judgment outright. In addition, the £2,750.00 received from the CICA would have to be repaid from any damages.

EEXXAAMMPPLLEE 33 This Sub Officer in charge of a RDS station found two letters that had been left by his supervisory officer in which he was admonished for administrative failings on his station. There had been no discussions between the two about these matters and no attempt to understand the reasons for the perceived failings or how the OIC might be helped to resolve them. The RDS Sub Officer became totally demoralised and demotivated by this high-handed treatment, until we pointed out that these letters were in breach of discipline procedures and the fundamentals of natural justice. An RFU representative worked with a senior manager to facilitate better communications between the officer and the OIC, which resulted in the letters being withdrawn and a more supportive attitude to resolution of the original issues. Until that point the RDS sub officer had suffered a considerable loss of commitment, due to his treatment and had been on the point of resigning from the Service. “Managers must realise that as well as being employees, RDS personnel are volunteers, and need to be managed accordingly”.

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EEXXAAMMPPLLEE 44 Two of our members attended a house fire and were ordered to enter the property which unbeknown to the Officer in Charge was supplied by propane gas. Both members were injured by a subsequent explosion. Liability was admitted by the Brigade. Firefighter 1 suffered a fractured spine, subsequent respiratory problems and psychological symptoms. He was unable to return to work as a retained firefighter but continued, with considerable fortitude in his full time employment as a security guard. This resulted in out member receiving a brigade sickness pension as well as a lump sum of £62,000.00. Firefighter 2 suffered deep dermal and superficial burns to the back of his hands which required conservative treatment and no surgery. He was able to return to both his full time employment and to his retained duties after 10 weeks. His hands continued to suffer symptoms in both hot and cold conditions. The member received £8,685.00 in settlement of his claim. EEXXAAMMPPLLEE 55 Our member was travelling in the rear of a fire appliance answering an emergency call when the vehicle crashed into another appliance due to icy road conditions. Our member suffered a fracture dislocation of his left wrist and a minor injury to his neck. He was unable to return to work as a retained firefighter and was prevented from applying for a job as a full time firefighter. There was a very real possibility of the member requiring a fusion operation within 10 years. Liability was admitted by the Brigade. The member received £157,000.00 to include pain, suffering and loss of amenity, past and future loss of earnings as a retained firefighter and from the member’s permanent employment, loss of pension between his part time permanent employment and the pension he would have been entitled to as a full time firefighter, care, travelling, medication, loss of congenial employment and the cost of future surgery to his wrist. EEXXAAMMPPLLEE 66 One of the major issues in the fire and rescue service is the failure to deal adequately with minor inter-personal issues within a reasonable timescale. This results in small problems that should be relatively easy to resolve becoming big problems that sometimes cannot be resolved without drastic action. Of the many examples, one involved a member with six years service, who had a complaint made against him in respect of some injudicious remarks on the fireground to another firefighter. There had been previous “bad blood” between them, and this could have been resolved at an early stage by management intervention and a resolution found that satisfied all concerned. Instead, the fire and rescue service waited until a formal complaint had been made and then let the investigation and

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resolution fester for another period of twenty-one months, during which time relationships further deteriorated. Ultimately, there was an employment tribunal hearing, where the procedures of the fire and rescue service were found to flawed and they were criticised for their failure to resolve the issues at a much earlier stage. A financial settlement was made against the fire and rescue service. Another feature of this case was the procedural failures by the management of the fire and rescue service and their attempts to bully some witnesses (RDS personnel) into being interviewed and giving statements without allowing their RFU representatives present. However, other RDS and Shift duty personnel were advised in writing by the fire and rescue service to attend these interviews with their representative. The fire and rescue service had to accept that RFU representatives have the right to accompany members. At the end of this sorry affair the personnel at the station involved underwent massive turmoil and individuals were subject to intolerable stress. The divisions created are likely to last throughout the remaining service of the personnel currently serving, and without management will probably result in prejudices being passed on to new recruits. One of the planks of natural justice is that discipline procedures should be undertaken without undue delay. The fire and rescue service often fails in this respect, subjecting its employees to stress way beyond what is justified. EEXXAAMMPPLLEE 77 Our member suffered severe injuries to his leg when falling into an inner courtyard from the roof of a building which was on fire. The member accepted that he was 60% to blame for his accident and accordingly, he recovered 40% only of his claim. The member suffered an open fracture of the right femur, a fractured left knee, damage to his ligaments and lacerations to his right thumb. He was required to undergo numerous operations. The member could not return to his job as a retained firefighter which caused him great distress. Neither was he able to continue with his hobby of motor cross. He eventually managed to obtain work as a Prison Officer. The claim was settled out of court much to the member’s satisfaction which included a sickness pension. EEXXAAMMPPLLEE 88 Two RFU members, one a JO with 15+year’s experience, the other a probationary fire-fighter served at this station which was a hotbed of militancy with a long history of trouble, often described as a “running sore”. The station had at one time been day crewed and then downgraded to nucleus crewing. Over a period of time the unwillingness of the W/T to attend the station on any other than when contractually obligated had provided the brigade with data to suggest that the station was meeting the standards of fire cover as a retained unit. A

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review showed that the station could meet the new standards and was therefore reduced to a 2 pump retained station. The problems which then arose for our members were purely as a result of them wishing to make the most of the new status of the station, they were keen to carry out community education and visits to schools etc, they also embraced the need to carry out maintenance and administration duties which had previously been carried out by the nucleus W/T crew. The station was a militant stronghold with many of the former personnel who still lived in the town pulling the strings and manipulating their retained members at the station to carry out a war of attrition with the brigade. Their ultimate goal was to prove that the station could never function as a stand alone retained station and anyone who contributed to its success as such was now considered the enemy. Harassment and bullying reared its ugly head with our members raising this through the chain of command, which failed to support them. The supervisory officer for the station did little to try to resolve the issues, this at a time when the situation was crying out for local managerial action. Evidence of appeasement of the protagonists for fear of upsetting the militants was there from the start. On our advice our members used the county council’s bullying and harassment procedures to try and address the problems and get back to work as they were by now both on sick leave with stress related illness. The brigade also failed to provide counselling of any sort and they were left to seek help via their own GPs. The council sought the services of a mediation consultant to try to find a way forward. Our members were fully prepared to use this route and cooperated fully with the plan of action, but the remaining personnel were advised not to co-operate. As a result the mediation exercise collapsed. The next step was to use an external team of investigators to carry out an investigation with a view to determine who was at fault. Again, a lack of co-operation saw to it that the rest closed ranks and no evidence was forthcoming. The brigade then waited until the 2 had been on sick leave for a year and sought to dismiss them under frustration of contract because they had not returned to work. It is interesting that throughout their period of sick leave, the Brigade Medical adviser had consistently stated that the pair were unfit to return. He described in a letter that that this was a management problem and our members were unfit to do so until the brigade had taken action to deal with the problems at the station. The issue was eventually concluded by lengthy legal intervention and correspondence and the inevitable expense when a package was negotiated which at least recognised that the brigade had a case to answer by making a payment to them both upon leaving the service. “There is little prospect of real change when the fire and rescue service can cover up their failings by buying their victims off to avoid these matters coming into the public domain”.

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EEXXAAMMPPLLEE 99 Our member was assisting with clearing up duties after a fire when the floor gave way under him and his right leg went through the floor. This caused serious ligament damage to his right ankle for which surgery was required. The member also suffered post traumatic stress disorder. The member could not return to his retained firefighting duties. Liability was not admitted. The Brigade alleged that the member contributed to his own injuries, they disputed the length of time which he suffered post traumatic stress disorder and they argued that the member would not have been able to carry on as a firefighter in any event, even if the accident had not occurred, because of a pre-existing eye condition. Proceedings were issued and the case was eventually settled with the member receiving £25,000.00 plus a brigade sickness pension.

EEXXAAMMPPLLEE 1100 The member was involved in showing a group of children around a fire station, during which visit water was discharged into the drill yard. The drill yard was drained by a system of shallow channels, covered with metal grids and these had become blocked over a period of time. The member tried to remove one of the baskets from the channel. The basket was supposed to have a wire handle at each end but one was missing. Whilst attempting to lift the basket out of the drainage gully, the member suffered an injury to his back. The member was unable to return to his firefighting duties and his business was affected. The Brigade admitted liability but disputed the amount of the member’s losses. Court proceedings were necessary but the Claimant received £30,000.00 plus a brigade sickness pension.

EEXXAAMMPPLLEE 1111 This member was injured during his full time employment. Although the RFU could not actually fund his claim, it was dealt with under the terms of a Conditional Fee Agreement with Howes Percival. The member sustained injuries to his lower back which prevented him from returning to his full time employment or to his Brigade work. However, he hoped to retrain or return to part time work. The member’s claim was settled in the sum of £55,000.00.

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EEXXAAMMPPLLEE 1122 Our member responded to his alerter knowing that he was the only driver available. Due to being held up in traffic, when he got to a clear piece of road he drove over the limit and got caught in a speed trap. The potential consequences were a hefty fine and a likely driving ban which would potentially add to the problems at his station in turning out an appliance. His solicitor felt that he should just plead guilty and accept the punishment, but we felt that to plead guilty would not allow the magistrate to fully appreciate the facts surrounding the case. In the event the solicitor was persuaded. A letter of mitigation was prepared for the magistrate who was to hear the case explaining just what a Retained Firefighter does to serve his/her community, included in this was the fact that our member was a qualified appliance turnout driver and not a tearaway. This resulted in a justifiable fine but not a driving ban. Our member was very satisfied with our efforts on his behalf. EEXXAAMMPPLLEE 1133 Our member had held a clean driving licence for many years. He changed his job and due to unrealistic deadlines placed on him by his employer, he gradually racked up a number of speeding convictions (we won’t reveal the name of the company). Our member then left after only a few months because he could see himself suffering a driving ban. Once again by informing the magistrate what exactly a Retained Firefighter does and the impact it would have at his station a fine was imposed but no driving ban. On both these occasions, the magistrate was sympathetic because he was fully aware of the situation and therefore able to deal with both of the “offenders” sensibly. This should serve as a warning that we do not condone speeding or inappropriate driving but we will provide support wherever we can.

EEXXAAMMPPLLEE 1144 Member who was under pressure from her primary employer, who was trying to place restrictions on her turning out from work. With our help and advice a solution acceptable to both parties was reached. Our member is now happy to observe occasional restrictions on turning out.

EEXXAAMMPPLLEE 1155 Our member an LFf injured himself in a fall whilst responding to his alerter and damaged knee ligaments. The brigade initially fulfilled its obligations under the Grey Book and continued to pay him for loss of earnings and missed calls. However, RDS personnel who injure themselves on duty often encounter difficulties with their main employment if the injury results in a lengthy period of absence. This problem is unique to RDS personnel as the Grey Book has been negotiated to be supportive of personnel on other duty systems and the problem never arises. Our member was dismissed by his employer after a six month absence, and the brigade

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stopped paying him, as he was no longer deemed to be suffering a loss of earnings. Correspondence and phone calls for a sympathetic attitude became lost in the system. Brigade Departments must realise that at times such as this an employee whose income has stopped is very often in a desperate state and needs help without delay. It must also be noted that RDS personnel have a great deal of faith that the brigade will “look after them” and their perceptions change rapidly when they realise that this is not the case. An issue such as this should not tax the abilities of senior management and its HR department but it did. Their inactivity made matters far worse than was necessary because whilst they considered their position, he was in limbo and could not apply for state benefits to which he would have been entitled. It took action from us to finally persuade the brigade to do something. During this time our member has attempted to seek employment which takes into account his injury but without success, as most employers are unwilling to employ someone who may need time off for treatment. These are not unusual problems, which are having a negative impact on recruitment and retention in the retained service, and need to be dealt with. The RFU has raised all of these issues in the recent Retained Review Team, which was set up by the Minister to meet our concerns. This review has identified a raft of issues which affect RDS personnel and which need to resolved as a matter of urgency. We see this initiative as the only means of ensuring that F&RS meet the needs of personnel on this duty system in the long term. Managers need to have knowledge of and understand the motivation of personnel on the RDS-otherwise they will be unable to treat members fairly. EEXXAAMMPPLLEE 1166 Our member called head office for advice on holiday pay issues in his part-time employment (not fire service) and his retained pension (some brigades already provide retained with a pension!), not a straightforward case from his point of view, even so we have to support a member even when he’s retired. Especially as we often see that once retired problems arise, no-one other than the RFU is interested in providing support. This reinforces our suggestion to members who are about to retire that it will be in their best interests to remain as associate members should the worst happen. Every year we continue to act for retired members whose injuries worsen with age. EEXXAAMMPPLLEE 1177 After joining the Wholetime service after being Retained our member found that he was being underpaid. This was because his previous service as a Retained Firefighter had not been taken into consideration. We are now dealing with this matter with the brigade, who has had to approach the NJC in view of the substantial amount of money involved. A positive result expected, another happy member!

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EEXXAAMMPPLLEE 1188 Our member, a retained firefighter for 37 years, questioned on his retirement the issue of a bounty payment for the years beyond 35. The brigade concerned had initially said no as the recommendation in the grey book did not go beyond 35. As we all know it is quite common for retained to have joined at 17 and are still going strong many years later. Suffice to say we intervened on our associate member’s behalf and the brigade reconsidered their initial decision, for which we commend them and paid our member for the years over and above 35.

EEXXAAMMPPLLEE 1199 Our member was injured on duty at an incident and unable to work in either his full time employment or the service. Without any earnings he relied heavily on the brigade to compensate him for his loss of earnings during this period. Throughout this time it has been necessary for the brigade concerned to be repeatedly reminded of its obligations in the Grey Book. More disappointing is the fact that this brigade is very reliant on retained staff to run the service and as such should be fluent in the process. On a number of occasions our member had to ring the brigade payroll department chasing his loss of earnings from his primary employment, something that he and his family relied on. The brigade was also noticeable by its absence in the fact that our member was visited only once during the time he had his accident (just under 2 years). Interestingly enough the brigade recently issued a glossy local newsletter that included an item which proceeded to inform personnel how professional and caring their Human Resources/Personnel department was. It is our view that self congratulation should be replaced with feedback from personnel at the sharp end who come into direct contact with this and any brigade department. Eventually the member was retired on medical grounds with a qualifying injury and will leave the service and try to find work that his injury permits him to do. As he had all but completed 20 years loyal service we wrote to the Chief requesting that as he was so close to being eligible for the LSGC medal he would like to remain in the service in an unpaid capacity until he had received the medal. We have had previous examples where such a request has been supported by CFO’s because they recognised the loyal service of the member concerned. The response from the CFO in this case was there was no provision for being able to do so. Another case, of the fire and rescue service being entirely correct in acting within the rules- but totally inflexibly. The RDS would collapse if its members acted in this way. EEXXAAMMPPLLEE 2200 Our member was suspended from duty for a period of more than 12 months, whilst his Brigade carried out a disciplinary investigation. During this period, he experienced a significant loss of earnings and his health and that of his family were affected.

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Howes Percival wrote to the Brigade to request a full explanation for this unnecessary delay and to exert pressure on the Brigade to schedule the hearing. Following an exchange of correspondence, Howes Percival eventually succeeded in forcing the Brigade to convene the hearing in April 2002. However, the Brigade refused to allow the member to be represented by his chosen representative at the hearing, relying on the Fire Services (Discipline) (Scotland) Regulations 1985. They refused to acknowledge that they were bound by the Employment Relations Act 1999. Eventually, after threatening proceeding against the Brigade, our member was allowed his choice of representation, a retained member of the Fire Service, who was a duly authorised Trade Union Official. We have subsequently received confirmation from the Government that our interpretation of the legislation was correct. Following the Hearing, Howes Percival advised our member in relation to raising a grievance against the Brigade concerning the way in which they had handled the disciplinary issue. He was forced to appeal the decision reached at his grievance hearing. However, on appeal, his grievance was upheld in respect of the unacceptable length of time which it had taken the Brigade to deal with the investigation into his disciplinary case, during which time he had remained suspended from work. His grievance concerning the Brigade’s failure to provide him with sufficient welfare care during his suspension was also upheld. Howes Percival are currently pursuing the Brigade for compensation for the member’s loss of turnout pay during the time when he was suspended from duty. EEXXAAMMPPLLEE 2211 Our member, having completed more than 28 year’s service, was bullied and harassed by a number of his colleagues for a lengthy period. Despite making official complaints to the Fire Brigade, these incidents were not properly investigated. Consequently, our member was diagnosed as suffering from work-related stress, which resulted in his absence from work for some months. During this period, despite the fact that his illness was caused by his work, the Brigade refused to pay him any sick pay whatsoever. Howes Percival wrote to the Brigade on the member’s behalf to highlight the problems that our member had experienced and their failure to deal with these issues. However, the Brigade neither addressed the shortcomings in their procedures and the way in which they had dealt with the member nor tried to reach agreement to compensate the member for the way in which he had been treated. Our member was forced to resign from his position as a Retained Firefighter and Howes Percival advised him in relation to his claim for constructive dismissal which was submitted to the Employment Tribunal earlier this year. Howes Percival has represented the Applicant in the negotiations that have taken place since his Application was lodged with the Tribunal. The Brigade made an initial offer of £20,000 but Howes Percival negotiated with them to increase this figure and achieved a settlement of £25,000.

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“If retained firefighter was a Religion, Gender, Disability or Ethnic Group, it would have been unlawful to treat me in this way”.

EEXXAAMMPPLLEE 2222 Probationary Ff, whose job required him to move away for six months, found himself likely to be dismissed because the brigade concerned was unwilling for his probationary period to be interrupted or extended. His job would enable him to return home every month for a week and his intention was to use this time to provide fire cover and to catch up with his training. Prior to the change in his main job circumstances, he had attended a number of training courses which were a pre-requisite of his probationary period well in advance of the 22 month probationary period, as well as other optional training courses. All-in-all the sort of committed retained firefighter that would be valued at any retained fire station. Our representations on his behalf led to a change of heart by the brigade who put together a package to address his particular circumstances.

EEXXAAMMPPLLEE 2233 Our member contacted us because a new policy had been implemented in his Brigade, which meant that personnel had to record their duties but the Junior Officers had to vouch that the entries were true and accurate, even when they were not present at the station when the entries were made. Our member was concerned that, having confirmed that the entries were correct, he could be found liable if they were later found to be inaccurate or even fraudulent. He had refused to sign the document in accordance with the new policy due to his concerns, particularly as he had not received any training prior to the implementation of the policy. Despite having clearly explained the grounds for his refusal, our member was told that he had to attend a recorded interview as part of an investigatory process which could result in disciplinary action being taken against him. Howes Percival advised our member about the legal and practical implications of his refusal as an employee to comply with the Brigade’s instructions. They suggested that he pose a number of questions to the Brigade, including the reasons for changing the old procedure, the rationale behind the new policy and the guidelines that Junior Officers should follow when implementing the new policy. As a result, our member did not have to attend the recorded interview and the Station Officer agreed to comment in writing on the issues that he had raised. He also acknowledged that they would have to re-examine the policy and how it was to operate in practice. Until these steps are taken, the member concerned and his colleagues are not obliged to sign the new form. They are also to be invited to a meeting at which the problems created by the new system will be discussed.

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EEXXAAMMPPLLEE 2244 This case involved a member with 28 years loyal service, who was 18 months short of retirement when he had his normal three-yearly medical. Like many people at that age, he had high blood pressure, which was adequately controlled by beta-blocker tablets. Central guidance on medical standards has been issued to the fire service for over ten years which indicates that if someone is taking beta-blockers the normal step-test is not appropriate and an alternative means of measuring fitness is recommended. In this case, this advice was ignored, and our member was given the step-test, against this clear advice, and he was failed, taken off the run, and his pay reduced accordingly. We gave him advice and he submitted grievances and tried to get the brigade to remedy its mistakes. Eventually, in the light of an impasse, and the fact that the member was approaching his retirement, we issued proceedings through an Employment Tribunal. This found in favour of our member, stating: The original test was inappropriate, as he was on beta-blockers-the member had fulfilled his obligations by informing the tester of his exact medication. Secondly, the Tribunal criticised the Brigade for giving the test notwithstanding that he had a blood pressure reading in excess of that laid down in the test guide. The Tribunal went on to say: In our judgment he should have been allowed to continue undertaking his operational duties until he was administered an appropriate test. This test was clearly not appropriate A firefighter that is not allowed to fight fires is bound to be dissatisfied. The respondents removed him from those duties based upon an inappropriate test and failed to address his complaints about that or to arrange a suitably agreed test He was left in limbo for ten months and his grievance through two stages only was dragged out over a period of ten months. In our judgment that was conduct likely to seriously undermine the trust and confidence in the employment relationship. The Tribunal unanimously found in favour of our member-it is difficult to see how they could do otherwise, in the light of the evidence. However, the Brigade then decided to appeal to an Employment Appeal Tribunal. The case was then heard by a Judge, who backed up the original decision, and criticised the brigade and their actions. Eventually, after a delay of two-and-a-half years, a lot of unnecessary public expenditure, and expense to the RFU (employment law costs are unrecoverable-even when you win), the case was settled. Our member was paid compensation for his losses during the time he was off the run, and up until his retirement date. This case is perhaps best summed up by the comments of the Tribunal Chairman: In our collective judgment this case demonstrates how easy it is for a large organisation to lose touch with the concerns of an individual.

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EEXXAAMMPPLLEE 2255 Our member was dismissed for bringing potentially offensive material on to his Station. Howes Percival advised us in relation to the Appeal against his dismissal. The issues that Howes Percival suggested we address at the Hearing were:-

1. Whether his conduct was “unwanted” in accordance with the Sexual Harassment / Sex Discrimination legislation, given the cultural norms in the environment in which he worked, particularly bearing in mind the other material that was displayed around the Station.

2. The fact that as a Retained Member he had not received the Equal

Opportunities training and support, which was given to his whole-time counterparts in relation to these matters. Therefore to discipline him when he had not received the appropriate training could constitute less favourable treatment under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.

3. Whether the Chief Fire Officer, who was to conduct the Appeal, had prior

knowledge of this matter, as a result of which his objectivity when making a decision might be impaired.

As a result of the issues raised and arguments put forward by our representative at the Appeal Hearing, our member was reinstated.

EEXXAAMMPPLLEE 2266 Our member pleaded guilty to charges of criminal damage and threatening behaviour in the Magistrates Court. However, he failed to report to the Brigade that criminal proceedings were being taken against him. As a result, the Brigade suspended him with immediate effect on the basis that his criminal conduct might constitute a breach of The Fire Service (Discipline) Regulations 1985. An investigation was carried out followed by a full hearing at which the Chief Fire Officer decided that the appropriate disciplinary sanction was dismissal. With the help of Howes Percival, we assisted our member in appealing the Chief’s decision to dismiss him. We argued that a lesser punishment was appropriate in the circumstances. The offence was a one-off incident involving someone who was known to our member and was clearly not regarded as particularly serious by the Magistrates who imposed a fine - the most lenient punishment applicable. In addition, our member had served for a lengthy period during which his service record was exemplary. At the Appeal Hearing, following our written and oral submissions, which outlined our member’s commitment to the service, his enthusiasm and honesty and included a significant number of character witness statements, he was re-instated by the Brigade.

EEXXAAMMPPLLEE 2277 Member rang in to seek advice involving an alleged traffic offence, facing accusations of speeding to the station. A written complaint was sent to the brigade, advice given to

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the member by phone and email. Matter resolved, no charges brought against him due to the fact that the vehicle described in the complaint did not belong to him or a member of his family, a case of mistaken identity. This is a common problem that arises all over the country. Brigades have a duty to investigate all complaints made but sometimes a simple explanation is not accepted by them and we need to intervene to ensure that our member has the necessary support.

EEXXAAMMPPLLEE 2288 Due to a changes in the Grey Book, the brigade had to implement payment of a full retaining fee for 120 hours cover. RDS personnel were asked to provide details of availability on a week by week basis. On receipt of our members availability sheet the brigade questioned as to why the total cover provided was less than that stated on his original application on joining the service, some 12 years ago. When asked why a change of circumstance form had not been filled in our member stated that he was not made aware that he needed to complete one. It was also noted that nobody on station had completed a change of circumstance form prior to the implementation of the new policy. Our member was then told that the reduction in hours was not of benefit to the station and not a satisfactory change from his original commitment and he was dismissed from the Fire Service. On requesting the services of his union we made our own investigations into the matter and initially pursued an informal process with the brigade, unfortunately to no avail. This led to a more formal approach instigating the brigade’s own procedures. After review, the brigade confirmed that they did act correctly and in accordance with their own policy. It was not until we made preparations to submit an appeal to the fire authority that the brigade reversed their original decision and reinstated our member with full back-pay. Interestingly enough during the time our member had been dismissed from the fire service, the station had faced more time off the run than it was available. The brigade’s initial inflexible stance actually reduced fire cover in the area. Its perhaps amazing that anybody would want to resume their service after such treatment-in another case, where a member was re-instated after appeal, he decided he no longer wanted to work for an employer that treated him in this way. EEXXAAMMPPLLEE 2299 Our member was injured on duty in 1987 and was pensioned out of the service. His condition worsened. Within the Statutory Instrument of the scheme a review is permitted but the brigade did not respond to any of our member’s letters. After union intervention the review did take place and was completed with a proven increase in disability and therefore an enhanced pension.

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EEXXAAMMPPLLEE 3300 Member requiring advice over the issue of redundancy. Many companies fail to advise their staff or do not have the expertise in how to deal with the redundancy issue. Advice given initially from HQ backed up by further information from Howes Percival. Member was reassured as to his rights under Employment Law. EEXXAAMMPPLLEE 3311 Our member was dismissed by the brigade for infringing the brigade’s policy of Fairness and Equality. At a hearing the union was able to prove that the Retained section of the brigade had not received any training on Fairness and Equality, only wholetime personnel. Our member was reinstated and is now acting up as a LFf.

EEXXAAMMPPLLEE 3322 While responding to his alerter, our member parked opposite the fire station and proceeded to cross the road. Due to a poorly maintained piece of road he tripped and fell to the ground sustaining a fracture to the left arm and multiple fractures of the shoulder socket as well as severe bruising. These injuries are serious enough to potentially force him to retire from the service. Our support has ensured that he is compensated for loss of earnings in both his full and retained employment. We are also pursuing legal action against the council who were responsible for the upkeep of the road. EEXXAAMMPPLLEE 3333 This member had been an employee of the brigade for 19 years, and the problems he has faced arose during the dispute of 2002. He and his colleagues at this particular station suffered threats and abusive behaviour for continuing to work. At one particular incident his crew came under attack from striking firefighters including senior officers and as a result the police were called. Our member made a full statement of the facts backed up by witnesses and reported this to the CFO. To this date in spite of the police involvement at the incident, the events have never been investigated by the brigade. He became aware of both overt and covert intimidation in the form of abusive telephone calls at all hours of the day and night. He was also subject to other forms of incitement to hatred, intimidation and blatant abuse against him. He attempted to pursue the matter with the brigade and due to the fact that a number of those involved in the events were in his chain of command felt that any complaint would be suppressed within the system. “Coincidentally” he was then advised that complaints had been made against him as revenge for his actions in the dispute and for complaining about them to the CFO. The previous months began to take their toll on both him and his family and he was advised by his GP that he was unfit for duty due to work related stress in the fire service. A lengthy period of absence followed. His wholetime senior officer gave an instruction that he should be paid for missed calls and fees during this period, but he

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has to date never received payment for his losses. Eventually the brigade organised and paid for a lengthy period of counselling and after a period of time he returned to work. With all of these factors in mind, the brigade then refused to accept that his sickness absence constituted work related stress and continued to refuse to pay him for his loss of earnings even though they had organised the counselling he received. The RFU’s solicitors became involved and eventually our member was paid compensation for his lost income “I no longer expect fair treatment and support from my managers, as it is them who are bullying and harassing me".

EEXXAAMMPPLLEE 3344 Our member became subjected to unprecedented harassment and bullying for the sole reason that he did not go on strike. He was told by the local brigade official who served on the same station, that he had” better get yourself some protection” Days later he was arrested by police for alleged offences. A thorough Police investigation found no case to answer. The complainant was related to the partner of a striking firefighter. Our member was suspended pending the outcome of the investigation, suffered severe strain. He was self employed but because of the time he was off sick with depression he lost his main income as well as that from the fire service. The RFU is now resolving his loss of earnings from the service. This case could have been resolved many months before, but indifference by the management has seen it continue. Only now after meetings and robust correspondence have matters proceeded toward a successful conclusion “How can we be expected to play our part in fighting discrimination on the grounds of gender, race, etc. when we have been subject to discrimination on the grounds of our duty system for the past 60 years?”

EEXXAAMMPPLLEE 3355 Our member, whilst driving a Fire Appliance was involved in a road traffic collision, and subsequently charged with driving a vehicle without due care and attention and asked to appear at the local Magistrates court. Whilst turning right onto the local High street the appliance was struck by an on-coming car, the driver of the car suffered slight injuries along with damage to both vehicles. The appliance driver had held his qualification since 1984 and regularly drove to incidents. In this time he has never been involved in an accident or received a conviction for any road traffic offence.

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The brigade was aware of the incident but left its employee to cope with the appearance in court on his own and did not provide any legal support. If our member had been convicted in court he would then have been subject to disciplinary action by the brigade possibly resulting in loss of pay and reduction in rank. However, due to RFU intervention, legal support was provided at the hearing and various pieces of relevant evidence was put forward resulting in complete exoneration towards our member.

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SSUUMMMMAARRYY The RFU plays an important role in ensuring that its members receive ‘natural justice’ should the unforeseen happen. As a firefighter you are placing yourself in many potentially dangerous scenarios on a regular basis therefore you need to be sure that you and your family will be secure in the knowledge that if an accident did occur you will be compensated accordingly. The examples given do not even make reference to the numerous phone calls Head Office and local officials receive on a daily basis from members who seek advice on fire service matters (annual leave, retirement age etc. and other matters unrelated). The RFU is not only an organisation with over 26 years experience on fire service matters, it is proven to be the ONLY organisation with the Retained interests as its sole purpose, ensuring the Retained matters are always top of our agenda.

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This report was produced in association with

The RFU’s legal team with years of expertise in representing Firefighters on the Retained Duty System

Leicester No. 1 Bede Island Road,

Bede Island Business Park, Leicester LE2 7EA

Telephone: 0116 2473500 Fax: 0116 2473539

Milton Keynes 252 Upper Third Street,

Grafton Gate East, Milton Keynes MK9 1DZ

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Norwich The Guildyard 51,

Colegate, Norwich NR3 1DD

Telephone: 01603 762103 Fax: 01603 762104

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