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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 47340
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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My son is contracting with Trains, where he is an IT

Customer Question

My son is contracting with Virgin Trains, where he is an IT and systems consultant working on an automation project.
On Saturday he was returning by train to London from Liverpool after watching the West Ham v Everton football game. He was with his Mother, Sister and Cousin and they were travelling on Virgin Trains. They were all very excited after West Ham won after being 2 v 0 down for most of the match, it's was a remarkable win.
On arriving at Liverpool Lime Street station my son saw that the West Ham team were also returning to London on the same train. His mother, sister, cousin and himself were able to get a selfie photo with the West Ham captain, who was totally happy to be approached by a true fan.
The West Ham team had a dedicated and police protected carriage on the train. After the train left Liverpool my son approached the Police and Virgin Rail staff protecting access to the West Ham team carriage and asked whether it would be possible to get access to the carriage to say hello and get autographs. He explained that he worked for Virgin Rail and I believe he gave the impression that he was working at that time.
The Virgin staff said he could not have access and so he peacefully returned to his seat. A short while after he was approached by the Virgin staff together with the Police and was informed by the Virgin staff that they needed to have a private discussion with him. They took him to a private area on the train and informed him that he would have to get off the train at the next station (Stafford). When he got off the train he was taken to a secure room and informed that as they could smell alcohol on his breath that he would have to undergoe toxology tests. My son remained calm and was left in the room with a local rail employee. He was informed that the toxology person would take at least 1 1/2 hours to get there. His family members were not allowed to go with him and the on-board Virgin staff who had been central to the incident returned to the train to continue their journey to London.
Eventually my son's sister insisted that she be allowed to join him in the locked room and was given access. By this time my son was extremely distressed as were the 3 other family members.
The local rail employee would not explain what was happening and was occasionally on calls to his on-board colleagues. Eventually his sister asked whether his position would be different if he was no longer contracting with Virgin rail. After making a call they were informed that if my son surrendered his Virgin rail staff pass and resign his position that he could go. As the last train to London was just about to arrive at Stafford they decided that this was the only course of action open to them and therefore surrendered his employee pass verbally advising that he would resign.
Their journey back to London was uneventful and their valid tickets were accepted on the later train. They we all however very distressed by the incident.
First thing this morning I advised my son that he should email his boss informing him that on Monday morning he needed to meet with him to advise him of the details of an incident. He gave no details. A few hours later he received and email from his boss stating that he had been advised of the incident and that my son should meet him at 3pm on Monday at a coffee shop in London and should bring with him his company laptop and phone. My son spoke to his boss by phone and was advised to just follow the instruction in the email. my son asked whether a HR representative would also join the meeting and he was advised no, as they are all based in Crewe.
He was also advised by email that all of his IT rights with Virgin Rail had been revoked.
Understandably my son believes that his contract is going to be terminated.
I plan to join him at the meeting tomorrow and take notes. I cannot see how Virgin rail staff had any rights to remove him from a train where he had a valid ticket and in no way was causing a disturbance. In fact a police officer spoke to my daughter saying she couldn't understand what was happening. I also find it alarming that he was held captive by the company and was put under so much duress, to the point he surrendered his employee card. He had drunk alcohol earlier in the day but had not had an alcoholic drink for 6 hours. On the train they were eating burgers and drinking water. This was a Mother's Day treat which he organised for his Mum.
Could you give us some guidance on what immediate steps we should take.
Thank you.
Gary Webb
Submitted: 1 year ago.
Category: Law
Expert:  Jo C. replied 1 year ago.
What would you like to know about this please?
Customer: replied 1 year ago.
Have my sons human rights been abused and what actions you would recommend
Customer: replied 1 year ago.
Any thoughts yet? Thanks
Customer: replied 1 year ago.
Hello are you there?
Expert:  Jo C. replied 1 year ago.
Is there any reason you think it may have been?On what basis?
Expert:  Jo C. replied 1 year ago.
Are you asking whether they are entitled to terminate his account?
Customer: replied 1 year ago.
Morning Jo,
On the basis that my son had a valid ticket on what basis were they allowed to remove him from the train for toxology tests and restrain him in a locked room?
I presume that as he is just a contractor his contract could be terminated immediately or at least under the contract's terms I.e. So many days notice. I presume that if they are terminating for gross misconduct then I could be immediate?
Thanks
Gary
Expert:  Jo C. replied 1 year ago.
Wasn't the issue that they could smell alcoho at a time when he said he was working?
Expert:  Ben Jones replied 1 year ago.
Hello, my name is ***** ***** my colleague has asked me to assist with your query as it is more my area of law.Does his contract or a workplace policy say he could be subjected to toxicology tests?
Customer: replied 1 year ago.
I do not have a copy but will ask him to take a look
Expert:  Ben Jones replied 1 year ago.
If you could please, that would be useful. Also is there a meeting scheduled for today?
Customer: replied 1 year ago.
Thanks Ben. Yes he has been asked to meet his line manager in a coffee shop near their offices at 3pm. He has been asked to bring along his company laptop and mobile phone to the meeting. Our suspicion is that they intend to except his resignation which he tendered on Saturday night to enable him and, his mother, sister and cousin to get the last train back to London. I will join him at the meeting to take notes.
Customer: replied 1 year ago.
His employment record is immaculate and the agency who he has contracted through advised yesterday that they recently met withVirgin Rail who confirmed that they were very happy with his work etc. This is just a stupid messy situation he has got himself in to
Expert:  Ben Jones replied 1 year ago.
Thank you. The first thing to note here is that as a contractor his rights will be somewhat limited, in a sense that he is not protected against unfair dismissal. This means he could be dismissed or forced to resign for more or less any reason, as long as it is not linked to discrimination, such as gender, age, race, religion, etc, which I see no evidence of here. So regardless of whether he did anything wrong or not, he could be forced or asked to leave without being able to challenge it. As far as the incident was concerned, I can certainly understand how he may have been caught in the moment of the situation (as a WHU fan myself I probably would have done the same at the time). The issue is that some overzealous employees saw someone claiming to be an employee, who may have smelt a bit of alcohol, even I none had been consumed recently, who was trying to get access to some very high profile clients. Regardless of how polite he was, they may have seen it differently. As for the removal from the train, toxicology tests and detention, he could have been removed from the train at any time, employee or not, if they believed that there was a reason to do so. Having a valid ticket does not mean you can remain on the train because in effect it is private property and the operator can decide if someone needs to be removed. Obviously they should have a valid reason to do so and if none existed the affected person could potentially seek a refund or compensation if losses had been incurred. He could not be forced to provide toxicology tests unless he consented to it – physically he could not have been required to do that. As to being kept in a locked room, it really depends if there was a request by him to leave and he was physically prevented from doing so. Just because he was kept in a room and told to wait, does not mean he was forced to be there. If he had specifically made requests to leave and physically prevented from doing so then he could consider arguing it was a form of false imprisonment, although he cannot do much about it now apart from report it to the police and let them take it further if they consider it appropriate. This is not really an issue of human rights because these only apply to public bodies, like if he was detained by the police, but here it was a private company so the Human Rights Act does not apply. So what can he do? It does look like they may just accept his resignation, even if that was forced on him. If he did not resign, they could have decided to dismiss him anyway because he could not challenge it. The rest all appears to be bad practice or immoral, but not really illegal. So he cannot challenge it apart from rising a formal complaint with them, but legally he cannot prevent the termination of employment. I'm sorry if this is not necessarily the answer you were hoping for, however I do have a duty to be honest and explain the law as it actually stands. This does mean delivering bad news from time to time. I hope you understand and would be happy to provide any further clarification if needed. If you are still satisfied with the level of service you have received I would be grateful if you could please take a second to leave a positive rating by selecting 3, 4 or 5 starts at the top of the page. Thank you
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 47340
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Law Specialists are ready to help you
Customer: replied 1 year ago.
Thanks Ben for this very clear view, it is very helpful.
He will accept that his contract has ended and move on. I guess the main concern I have is that if Virgin Rail gave him a reference that it was in no way detrimental to his future employment opportunities. He has only been there for 4 months and was doing really well.
As he resigned rather than being fired would this mean they could purely give a reference that confirms he worked there for a certain period?
Expert:  Ben Jones replied 1 year ago.
They could indeed just give a factual and simple reference confirming dates of employment and job role. However, if they really wanted to they could go into more detail. Whilst there is no legal obligation on employers to provide a reference for past employees, if they choose to do so they will automatically owe them a duty to take reasonable care in its preparation. This requires the employer to be accurate in the contents of the reference and ensure it is based on facts, rather than just personal opinion. Certain principles have been established through case law over the years and the main points can be summarised as follows: 1. In the case of Bartholomew v London Borough of Hackney the employer provided a reference which contained details of disciplinary proceedings which were pending at the time the employee left. The court decided that the employer had not breached its duty of care by providing such a reference as it would have a duty to provide a reference that is true, accurate and fair and does not present facts so as to give a misleading impression overall. Therefore, if the employer had not included details of the disciplinary proceedings it would have failed in its duty to the prospective employer to provide a reference that was not unfair or misleading. 2. In the later case of Cox v Sun Alliance Life Ltd the employer provided a reference that contained details of an employee's alleged misconduct. However, they did not properly investigate these before providing the reference and the employee challenged the information in it. The court decided that an employer will be negligent in providing a reference that refers to an employee’s misconduct unless the employer had carried out an investigation and had reasonable grounds for believing that the misconduct had taken place. This can be applied to other matters forming part of a reference, not just issues of misconduct. So if it is obvious that incorrect facts have been relied on, the contents are false or misleading, there may be a potential case for negligence against the employer and this matter could be taken further by seeking compensation in the county court for any damages caused.