Workplace Drugs Policies – ET Fell into Substitution Trap

When considering whether a dismissal is unfair, Employment Tribunals (ETs) must resist the temptation to substitute their own views for those of the employer. That golden rule came under analysis in a case concerning a worker who was dismissed after testing positive for cannabis.

The man, a team leader who worked for a recycling company, had been off work for an extended period, suffering from back pain. He self-medicated with cannabis and failed a random drug test after his return to work. He was dismissed on grounds of gross misconduct. After he launched proceedings, an ET found that his dismissal was unfair.

Ruling on the company’s challenge to that decision, the Employment Appeal Tribunal (EAT) noted that the ET had understandably viewed the dismissal as harsh. No or no adequate consideration had been given to the man’s undisputed health mitigation, his expressions of contrition, his long and previously unblemished service and his commitment to his job. The ET’s finding that the company applied an unwritten and inflexible policy of dismissing any employee who failed a drugs test could not be characterised as perverse.

In upholding the appeal, however, the EAT found that the ET in important respects substituted its own findings for those of the company. Rather than focusing on the reasonableness of the company’s beliefs, the ET formed its own view that cannabis had not affected the man’s performance. It also substituted its opinion that it was not the man’s job to drive a van and that his role was therefore not safety critical. The case was remitted to a freshly constituted ET for reconsideration.