Footplate Courses - Age Discrimination

Some time ago I ran a one off loco driving experience for a blind man. He was fantastic - he had an engineering background in that he had been a quality control inspector in a factory and could work a lathe. He arrived and felt all round a dead engine of the same class so that he knew his way round the footplate of one in steam. He knew what a steam engine looked like as he was sighted until he was about eight. He had a wonderful sense of humour and roared with laughter when I suggested that he should face the direction in which the loco was travelling and again, when it started to get dark and I suggested that he was lucky because we didn't normally run RXDs after dusk! However, at the end of the course the Fireman and I were completely exhausted, even though he had his son in the cab as guide and mentor. We had hoped to run the odd day for blind people as a service to the public more than anything but we reluctantly decided that it wouldn't be possible simply due to the stress levels that the loco crew would suffer.

 

A few years ago I (with others) looked at running a day's simple footex for some blind people and it was heavily sat upon by HMRI when they heard about it.

 

I am the 73 year old pensioner on the receiving end of the comments above. You might well ask why would a retired 73 year old go to the trouble and aggravation of suing anyone? I will tell you but first my background,
have run my own business since I was 19 years old, finally retiring in good health at the age of 70. I have owned and driven vehicles, lorries, excavators and boats, I still own vintage tractors and a HGV to cart then to shows, the only thing missing was the opportunity to drive an engine.
Armed with a cheque and an application form I went to the Matlock shop and handed over the form and cheque, only to be told when a time and date was agreed that sorry as the gent was, he could not accept the form after all as I was over 70. I was to put it mildly livid not at the very apologetic gent but the jobsworths in charge. For the first time in my life some one had decided that at 69 years and 364 days I could, the next day I was to old, what utter rubbish and illegal to boot.
I will try and condense the next 6 months as follows.
I immediately wrote to P/R and pointed out that they were acting out side the law, (Direct Age Discrimination) In the eventual reply I was told that P/R was acting in accordance with the recommendations of the Rail Regulator. I wrote in response to the the Rail Regulator to complain and was promptly told that I had been miss informed and that some months previously all heritage railways were informed by the Regulator that they should not determine who could and could not take part in these courses based on age alone, and gave an example of the ability to climb onto and off the footplate as an indicator of fitness.

With this information I wrote again to P/R and was fobbed of with a letter referring the"various other rules and recommendations". I asked for clarification of these rules, no response. For the next 5/6 months my letters were ignored in the main, until I final wrote and said that if I did not get a suitable response I would put the matter in the hands of the courts. No response!

Under the circumstances what would you have done? Gone home, crawled under the table and whimpered? or knowing that you were right stood your ground? I could go on with chapter and verse but I think you get the root of the problem.
Thank you for taking the time to read this. By the way I am a member of 3 voluntary organisation one of which is rail orientated and the £1200 did not line my pocket but was used to purchase an item to which I have added further funds of my own, for the benefit of these organisations.
David Hallam.

 

This is a very difficult problem given the law in these matters now. Most Heritage railways seem to be getting round it for regular crew by subjecting them to regular medical checks where a trained professional makes the determination of fitness. Clearly with this model for volunteer staff then self certification of a participant in a steam experience course is not a totally safe option for the railway. I wonder what One cylinder would propose as a sensible alternative having regard to all the potential liabilities that could arise?
I should add that most Heritage railways I am familiar with had simple age limits for both firing and driving before the law was changed. I fully accept as footplate crew that one day the Doc. is going to say - "that's it for you old chap" if I have not already called time myself.

 

As we are talking specifically about driver experience courses I think with respect that the problem is easily solved. Consider, there would be a driver and fireman to one "student", the engine is on tracks and can only go backwards and forwards. As a condition of acceptance the student would sign a declaration that they take part in the course at their own risk and that they can climb on and off the engine unaided. The crew would have the final say as to whether they think the individual can take the course. Where is the risk?
How many of us know of car drivers who can hardly walk to their cars, collapse into the driving seat and then set off through the crowded streets, this is deemed not to be a risk??
I would not be happy with this but would reluctantly have agreed to a request for a letter of fitness from my doctor for 70 year old's plus.

Out of interest once the dust had settled on this unhappy saga, I at random picked out 16 heritage railways on found that only 2 had an upper age limit.

 

I would draw a distinction between crews in charge of the train (which are fully medically assessed and conversant in the railway, rules, route etc) and a participant in a course driving under supervision. The former most definitely needs a medical certificate, the latter probably not so. Some FootEx participants will be quite content to have a go on the regulator for a few miles, and not get involved in the more physical aspects such as firing. Others will want the whole experience and in fact some railway cater for this by offering staged courses. The railway concerned needs some sort of checklist to ensure that the self certification is given correctly, but I personally think it is really about sensibly managing risk, noting that it is impossible to totally exclude liability if something goes wrong. A Footex participant can have all the medical certificates he or she wants, but if he/she is injured as a result of the boiler not having a valid certificate (for example) then it's going to be difficult to argue otherwise.

At the end of the day all Heritage Railways operate trains, they can be dangerous, we have to manage the risks sensibly. I believe that there is HRA guidance on the operation of Footex courses, as there is about Competency Records.

Regards

Matt

 

When I started this thread I was concerned that railway might have an age limit thrust upon them by their insurance company and wondered where they stood. If they can't get insurance cover then they can't sensibly offer the course. Insurance companies did impose age limits on things and I believe that they were at liberty to do so as it was part of assessing the risk and they could decline to insure. Has this changed?

 

I stand to be corrected, but I think under the Equality Act 2010 Insurance Companies are permitted to impose restrictions due to age, but they are open to be challenged about it and it has to be objectively justified.

 

Found another railway more keen to take my money, and taken my business to them.

 

The crux of the matter as described by One Cylinder is not so much the original refusal to accept him but rather that the reasons given initially were spurious and no attempt was made to understand the position properly or to deal with the situation. When he pointed out to PR that the Rail Regulator did not support their position as they claimed they apparently responded with " a letter referring to "various other rules and recommendations". He asked for clarification of these rules and received no response even after warning of Court action.
What, of course, should have happened on receipt of his complaint, or at very least on receipt of his second letter quoting the Rail Regulator, was that PR management should have checked that their policy was soundly based and supported by appropriate legislation and rulings. They should also have consulted their insurers to see if there was a way to have an extension to cover these particular circumstances which are, after all, both very short term and low risk. Clearly this did not happen.
Instead somebody decided to retire behind a screen of waffle in the hope that the problem would go away. It didn't, and they were caught out.
The lessons to be learned are not "how terrible is Elf'n'safety, or HR or whatever", it is that if somebody raises an issue do your homework, ensure that your position really is justified, not that you just think it is, and if you are wrong apologise quickly and profer some sort of solution.

Mike

 

In the railway I volunteer on from memory for drivers there is a set retirement age. I am not sure if that applies to all footplate crew as I hung up my shovel long before anywhere near the mandatory age. One of the advantages is it is a simple rule and prevents argument or resentment that A was past fit but B was not. The rule has worked reasonably well and as the drivers were volunteers who loved the railway they have accepted when the time has come that they have been lucky to do what they have done, but all good things come to an end

Yes a company doctor could assess all those over a set age but I not sure if I was a Doctor I would want to that responsibility, especially if you were not my normal patient. Equally if I was a Railway I would not want to accept self certification beyond a set point or a Doctors certificate. I am not sure that would absolve the Railway of its responsibility, nor would a letter from a participant indemnifying the railway. I am sure we all have tales how easily Doctors certificates are to obtain in some cases or watched an elderly car driver and wondered how they have been passed fit to drive.

I think it should also be remembered that most railways and courses are run by volunteers who do not have the time to do specific checks. Ultimately they are responsible and I doubt a paid participant would take kindly if as an 80 year old they turn up with a certificate saying how fit they are only for the footplate crew to decline to take them.

I am with the railway on this one. Yes they may have handled badly subsequently but if they want to have an arbitrary set off date I have no issue with that. At least it is open and honest. A railway could always insist on a medical and set criteria so that anybody over an age fail.

Life is a bitch and we all get old. As we progress through life some doors open and some close. I was not legally allowed to have sex until I was 16, drive until 17 and buy a round until I was 18. If there are age restrictions on things when you are young why not when you are old. Cest La vie.

 

You are confusing two completely different things here. The issue is not about "retirement age" for Drivers which, as you say, must have some simple rules about age and physical ability given the serious responsibilities of the job. As Matt 78 said above "I would draw a distinction between crews in charge of the train (which are fully medically assessed and conversant in the railway, rules, route etc) and a participant in a course driving under supervision" The latter is accompanied by both a Driver and a Fireman who can take back total control of the engine immediately in an emergency: and One-cylinder makes the same point.
The topic under discussion in this thread is, as its name suggests: Age discrimination on Footplate experience courses.
In the case in point the Railway concerned appears to have imposed a somewhat arbitary upper age limit of 70 on would-be participants but failed to make this clear in their advertising or on their application form. One-cylinder was not aware of any age restriction until he attempted to hand in the application with his payment at the Matlock office. Once again it is not so much the mis-interpretation of regulation that is the problem it is the failure to communicate information properly and in the right way.

Mike

 

There is no requirement for any rules to be simple although clarity is useful. Neither can there be an arbitrary age limit for locomotive crew.

There are a number of issues becoming confused in the last few posts. Most of which have been discussed earlier in the thread. I suggest that if unfamiliar with the thread anyone thinking of posting should read it from the beginning.

 

You give the impression, maybe unintentionally, that you think my comments are either wrong or irrelevant. The comment about rules being "simple" was part of a response to lostlogin who had used that phrase in his posting. I have made no attempt to address the subject of "retirement " criteria for Drivers which is a quite separate matter and obviously has a number of complex issues, although I would say that, from long experience in another age sensitive field, keeping the rules as simple as possible usually helps to lessen awkward personal situations.
You, yourself, pointed out in your posting (#8) on 28 Oct that " Peak Rail should not have discriminated on age. They could have accepted this as soon as Mr Hallam objected. Any cost to the railway is unfortunate but due to their error."
I have merely picked up and expanded upon those comments in light of Mr Hallam's posting of last Sunday and the responses thereto.
I do not see that we are in disagreement.

Mike

 

Neither do I.

 

Probably the most sensible comment in this entire thread. Well said.

This seems a slightly ironic comment from the person who goes on to say...

So you mean "We agree"?

 

I have absolutely no sympathy with the claimant on the matter. Yes the railway could have handled it better but when presumably you are being threatened with legal action there is a tendency to only clam up. As the claimant admits in his own post when he submitted the form he was told there and then by a very apologetic individual that they operated an upper age limited.

In the same situation most of us would have been a bit disappointed, grumbled a bit and then maybe looked for alternatives. But no the claimant appears to have started banging about his rights, age discrimination and then engaged lawyers to sue. I have various words I would like to use to describe my opinion of that individual but I reckon most would not get past a spam filter.

The claimant seems to just be miffed that the railway has a policy and it is ageist. Well in my view that should just be tough luck. It should be down to them who they want to offer such trips to. But no we have to have somebody who “knows their rights” and is damn well going to use them. What next some parents of a toddler demanding that their kid who is “very advanced for their age” be allowed a trip Oh they can’t as age discrimination does not appear to apply to when setting minimum ages. Or if it does the young have the sense to accept and go running to lawyers.

I have operated as a crew on footplate experiences and for all that what appears to be implied by some in the thread when I am on the footplate what happens on that footplate I deem to be my responsibility. The fact that as the crew we can take over if something happens to an individual I deem fairly irrelevant. I don't want to have anything happening to an individual. I do not care what indemnities a person has given, or how healthy they have declared themselves to be, whilst they are on my footplate I consider myself totally responsible. That an arbitrary age limit is applied by some so that it reduces the number of occasions when I might have to consider how fit or not an elderly person is I am very grateful for because I am not particularly qualified to make an informed judgement and I want nobody on the footplate I have any concerns about what so ever. Nor do I want to offend somebody who has paid and turned up by telling them I am not comfortable with them on the footplate.

This to me is a complete abuse of why we have age discrimination legislation. But you know what I will happily accept if the claimant shows that just as they have no truck with any discrimination against them due to age they take none of the advantages that go with arbitrary age rules. I presume they do not bother claiming or using a free or discounted travel pass, senior citizen fares, get free prescriptions, teeth or eye care. That state pension that you get just because you are 65 is that not age discrimination as well? Presumably the claimant would refuse to accept that as it is age discriminatory!

The only good thing that I can see that has come out of this is that the railway probably saved itself a load of money by not letting him have a course, as presumably if he had and rubbed against something hot, or banged against something hard he would have sued them for failing to comply with H&S legislation or something. OK that is slightly facetious what they really should have done in hindsight is taken his money and then have the responsible crew turn him away on the day on the grounds they were concerned about his fitness. No claim but I expect an even more pissed off customer. Trying to be open and honest basically has cost them. I bet they won't be again so anybody who is now over a set age and turned away from a course by an operating crew on the day know who to thank.

As the claimant says in his post and in the article, this is not about poor communication etc it is that he sees it as wrong that he is not allowed to do some age 70 that he was allowed to do age 69 and 364 days and is not going to stand for it.

Rant Over

 

What would you do if a woman office worker showed showed up? Would you refuse to allow a woman on the footplate on the grounds that you don't believe any woman can safely drive a train, or that any office worker could do the course?

Mr Hallam states he has an HGV licence, which means he has had to pass a medical every year since he was 45. He maintains his lorry himself. You never know, if you had met him you might have found he was perfectly capable. By his account he made that very clear and got no response until he went to law. Sometimes nothing is more implacable than a mild mannered man who is mishandled and rubbed up the wrong way.

Tim

 

A person maintains etc and yes that person may well be very capable, but the facts are that as you become older you become less capable. I do not have the knowledge of assessing whether one elderly person is fit and the other is not by looking at them and nor do I want that responsibility. If those better qualified than me have made the decision that on the evidence available that at age X it is reasonable to expect that a certain percentage will not be capable so that is where the cut off will be I am happy to accept that. As I said I do not want the responsibility of deciding which elderly person is fit or not and sorry I am not going to trust what anybody says about themselves or what piece of paper they bring as we know that at times people issue without thought or when pressured etc. As I have also said on the footplate I am responsible and whether or not I have an indemnity or they have self certified I still believe I have duty of care and responsibility which no bit of paper over rides.

Imagine if the worst happens and an individual has a stroke or a heart attack and it turns out that I had relied on an indemnity or self certification etc. Do you not think that would be ignored at an inquest and that I would not simply be asked did I not look at the individual and think they were to old, frail or whatever for such strenuous activity.

I appreciate that at any age there will be those who are much fitter and healthier than many younger, and yes it may be slightly harsh on those but most of us are volunteers on loss making businesses that rely on financial support and donations to keep going. We do not have the time and means to put in detailed fitness assessments which is what it appears some expect of us because as I have said purely accepting an indemnity etc in respect of somebody elderly I doubt would wash it This day and age you have to be seen to making your own enquiries not just relying in what you are told.

With regard to having to have a medical after the age of 45 to have a HGV license. Is that not ageist? I wonder if the claimant sued in respect of that?

Maybe I am wrong but I am genuinely amazed that anybody who had an interest in preserved railways would consider suing on such a matter. It is on a par with the mother who sent a bill to another family for a kid not attending another's party. Have neither party heard of plain gold old common sense.