Railway worker who lowered crossing barrier onto car was not unfairly dismissed

7 Jun 2019 By Maggie Baska

Employee wanted to ‘teach driver a lesson’, tribunal hears, in case demonstrating importance of technological evidence

A railway crossing keeper was fairly sacked after he admitted bumping a car with a crossing barrier to “teach its driver a lesson”, a tribunal has ruled.

The London South employment tribunal ruled that Mr A McKay was not unfairly dismissed, as he claimed, but that Network Rail had dismissed him on 12 January 2018 following allegations of gross misconduct after the incident involving a car he felt had failed to respect warning alarms.

McKay, who was employed as a crossing keeper by Network Rail from May 2005 until his dismissal, was based at the crossing box at Whyteleafe South station  in Surrey. He operated level crossings at Whyteleafe and Whyteleafe South (pictured) via CCTV monitoring. 

The tribunal heard a crossing keeper receives a warning when a train is approaching, and it is their responsibility to operate the warning lights and lower the barriers to prevent cars and pedestrians from entering the crossing. 

Network Rail said the crossing keeper role is “safety critical” as crossings carry a high risk of injury or death if not operated correctly. 

It also said crossing keepers are subject to general signalling regulations (GSR) which require any accident to be reported. The tribunal heard that McKay had received a copy of those regulations on 27 November 2017. 

McKay was on duty on 5 December 2017 when a member of the public reported to Network Rail that she had been driving a light blue Volkswagen Golf estate across the Whyteleafe crossing when a barrier had hit her car. 

McKay’s line manager Mr Wilson attended the crossing box later that day, and McKay indicated an incident had taken place.

He said he was lowering the barriers when a car entered the crossing as traffic was queuing. The car sat on the crossing as the barriers were coming down. As the driver moved to clear the crossing, McKay bumped the back of the car with the barrier “to teach [it] a lesson not to go on the crossing when the lights are flashing and the alarms are sounding”. 

Wilson spoke to a senior manager the next day. He was advised the crossing incident needed to be investigated, and McKay was suspended on 6 December. 

Wilson obtained the driver’s complaint and a copy of the occurrence book, which is used by crossing keepers to record any noteworthy events during their shift. He also viewed the CCTV footage from the crossing which showed a car being hit by the barrier. 

Wilson informed McKay during a formal meeting on 14 December that the allegations made against him – striking the vehicle and failing to follow through with Network Rail’s GSR – were potentially gross misconduct and could lead to dismissal.   

Mr Shear-Smith, local operations manager, invited McKay to a disciplinary hearing on 12 January. At the meeting, McKay indicated there had been a second incident where a car had been hit, but no evidence of this was ever found.

McKay was dismissed for gross misconduct without notice. He appealed the dismissal but was unsuccessful. 

He brought claims of unfair dismissal to an employment tribunal. But Judge Katherine Andrews ruled in favour of Network Rail, saying it had reasonable grounds to dismiss McKay and carried out a fair investigation, including fully considering the possible issue of a second incident when McKay brought it up. 

Alan Lewis, partner at Constantine Law in London, said the ruling highlighted how technology could be used to assist employers in gathering evidence for disciplinary investigations. 

“Employers should look at what technology they have at their disposal, as things like CCTV or digital records can make things very clear to investigators,” Lewis said. “You might also have to consider that you may need to get an outside forensic expert in to look at your tech, enhance any images you want to use as evidence or even recover deleted files which could help the investigation.”

He added that employers should ensure employees, especially those who are being recorded by CCTV, were aware they were being recorded and inform them of any personal data being collected. 

Network Rail declined to comment, and McKay could not be reached for comment. 

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