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16 June 2005

Virgin Trains breaches disability law

A Virgin Trains driver has been awarded £41,000 damages by Exeter Employment Tribunal for Virgin's failure to allow him to return to work and failing to make adjustments while he was recovering from an injury sustained in a train crash at a level crossing.

Virgin's Plymouth Cross-Country line was found to be in breach of the Disability Discrimination Act (DDA) in failing to make reasonable adjustments to enable Martyn Hazelhurst to return to light duties after an operation on a knee injury caused by the crash.

Virgin told Mr Hazelhurst that he had been "stood down" in spite of his GP's recommendation that he could return to work. Virgin even suggested that he apply to his GP for a further sick note, which his GP refused to give.

Virgin was ordered to pay Mr Hazelhurst compensation for loss of earnings and injury to feelings. The award included an element of aggravated damages for Virgin's handling of the case, including failing to notify the court that a key witness - the head of occupational health - was unable to attend the hearing.

Mr Hazelhurst was represented throughout his case by his union ASLEF and union law firm Thompsons.

The tribunal  took the unusual step of saying it would make recommendations in relation to the 'adjustments' that Virgin should take under the DDA to allow Mr Hazelhurst to return to work.

Martyn Hazelhurst said: "It appeared to me that Virgin showed a total disregard for or lack of awareness of the DDA. ASLEF's legal service and Thompsons Solicitors were tremendous in sorting my situation out. I'm delighted with the result, but more importantly I'm really looking forward to getting back to driving trains."

Keith Norman, acting General Secretary of train driver's union ASLEF, said that while he was pleased the union had won the case, he regretted that it had ever been necessary. "No amount of money really compensates for the injuries Mr Hazelhurst has suffered or the way he has been treated by Virgin", he said. "Virgin has behaved as if it is above the law. However, Martyn would not have been in this situation if it hadn't been for his original injury caused by a lorry on an open level crossing. Our union is pressing for technology to be placed in cabs that will transmit pictures of the line two miles ahead."

Vaughan Gething, Martyn Hazelhurst's lawyer at Thompsons Solicitors in Bristol said: "This is a positive approach by the employment tribunal exactly as envisaged by the disability legislation. Virgin will hopefully respond accordingly and both they and Martyn will have a productive future together."

Notes for editors

ASLEF is the trade union which represents more than 18,000 - over 95% - of the UK's train drivers.

Thompsons is the UK's largest personal injury and employment rights law firm, winning over £150m in compensation for trade union members injured or denied their rights at work each year.

The Disability Discrimination Act - some of the main requirements:

Employers are under a duty to not discriminate against their disabled employees. There are three main aspects to disability discrimination. The first is a duty not to discriminate for a reason relating to a disability, the second is the duty to make reasonable adjustments. There is a possible defence of justification to these forms of disability discrimination unlike the law on race and sex discrimination.

There is now a third provision prohibiting direct discrimination against a disabled person simply be reason of their disability. There is no defence of justification to this new category of direct discrimination.

To gain the protection of the DDA a person has to satisfy the statutory definition of disability and this is normally a matter of dispute with employers when a tribunal claim is made.

The issue in this case primarily concerned the employer's duty to make reasonable adjustments for a disabled person. The duty to make reasonable adjustments is a wide one. However what is a reasonable adjustment will be decided by reference to the cost of the adjustments required, their effectiveness and the financial resources of the employer.

The duty to make adjustments can include amending the type of work, the hours of work, the place of work or transferring someone to a vacancy - even if only on a temporary basis. In his claim the tribunal ruled that Virgin Trains should have made more efforts in their search for alternative work for Mr Hazelhurst and he should have been paid whilst a proper search for alternative work was undertaken.