As a matter of urgency we reproduce the text below and following this we have also added the relevant section from the Transport Select Committee report, The future of rail: Improving the rail passenger experience. Journalists, MPs, and union officials should be applying maximum pressure for GTR to now justify their claim for force majeure – the blaming of their staff for their abysmal performance over the late spring and summer months up to the present. The TSC itself suggests a deadline of early November. It is clear that the DfT are underwriting GTR’s poor performance while the dispute is running. Don’t take our word for it read the report written by 6 Tory MPs, 4 Labour MPs, and 1 Scottish National Party MP who make up the Transport Select Committee. We hope to return to this particular blog at some point to add some further analysis.
Force majeure—a contractual term, commonly used in rail franchise agreements, for events that lead to an operator failing to meet contractual performance obligations, but which are beyond the operator’s control.
Below is an extract from the October 2016 Transport Select Committee:
“The data provided made clear that GTR’s actual performance against its cancellations benchmarks is now significantly in excess of the contractual breach and default levels: cancellations exceeded the default level in Reporting Periods 3 and 4, 2016/17 (29 May to 23 July).81 Data subsequently provided confirmed that cancellations exceeded the default level in Reporting Period 5 (24 July to 20 August).82 In normal circumstances this would be grounds for termination of the contract; however, GTR had made claims for force majeure in relation to official and unofficial industrial action in each Reporting Period since 28 April 2016.”
The Transport Select Committee Report released on the 14th October 2016 reveals that GTR have claimed force majeure for each reporting period since 28th April 2016.
The report also highlights that GTR have yet to provide the evidence to allow the DFT to rule on their claim: “the force majeure claims were being assessed “as they come in”, but GTR had not yet provided enough evidence on which to make an assessment, and the “pace of submission of each claim” had not been “as expected”.
GTR are claiming force majeure for their breach of contractual obligations by attempting to blame unofficial industrial action in the form of increased conductor sickness for the collapse of the Southern rail service, which they claim has prevented them achieving the required performance benchmarks.
The following points should illustrate GTR’s actions rather than unofficial industrial action were responsible for the collapse of Southern rail services and therefore force majeure should not apply:
- Failing to employ sufficient conductors and drivers to operate the service. This is the core of the problem. This shortage of Traincrew is highlighted between April and October due to the demands of covering not only summer holidays but also Traincrew using up banked rest days.
- The bullet points that follow not only highlight GTR’s attempts to “stress” conductors but to also ensure that more services than necessary were cancelled. GTR then blamed the increase in cancellation on unofficial industrial action, to distract from the fact that they employed insufficient Traincrew to meet their franchise commitments.
- Removing parking permits.
- Removing travel passes from conductors and their families.
- Removing the right to mutual changeovers which enabled Conductors to swap with their colleagues so as to facilitate child care and for these with responsibilities as carers within their families.
- Instigating campaigns such as “Strike Back” which endangered conductor safety and well-being. (To date no apology has been offered).
- Disregarding conductor Terms and Conditions and increasing enforced overtime. An example of disregarding Terms and Conditions is the following: conductor booked 15.00 spare on a Saturday being moved to a night shift. This resulted in the conductor only getting 25 hours 43 minutes between finishing the night shift and starting the day shift on Monday. The recommended minimum time between finishing nights and commencing days is 48 hours. When this was raised with the company they further reduced the time between nights and days to 25 hours 11 minutes .
- Removing the right of conductors to work rest days.
- Cancelling services due to lack of train crew when crew available.
- Not booking return to work medicals with the company’s Health Centre for conductors/drivers whose own doctors have signed as fit to work. This meant that perfectly healthy conductors and drivers sat about in the mess room for periods of 3-6 weeks as they could not carry out Safety Critical work until passed as fit by the Health Centre.
- Conductors encouraged to take voluntary redundancy.
HAS THERE BEEN AN INCREASE IN SICKNESS LEVELS ?
It should not be seen as surprising if sickness levels did increase amongst conductors during this period, when you consider the stress that they were deliberately put under by the Company .
The conductor role demands that they spend their working day in contact with the customers. When the train service is in a constantly degraded state and the company, to cover for their own failings, publicly puts the blame for this on to conductors, then the possibility of an increase in sickness levels can be seen as predictable consequence
It must be understood in assessing GTR’s claim that there has been unofficial industrial action through increased sickness, that they have in previous years used the excuse of unexpectedly high sickness levels to excuse poor performance. Here is an extract from an Office of Rail Regulation report released in August 2015:
58. Southern experienced a number of issues with Traincrew in 2014, including unforeseen high levels of sickness, training requirements for the new layout at London Bridge and Drivers declining to work overtime.” 3.7.2, p.27
The balance of probability would strongly suggest that it has been GTR’s efforts to camouflage the inadequate staffing levels for both conductors and drivers that has caused the collapse of the Southern rail service and the resultant misery inflicted on the travelling public.
It should be considered as unacceptable for GTR to allege that unofficial industrial action by conductors has played any part in this collapse of the Southern rail service.