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,…

Nov 10, 2021

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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.

ET Should Have Considered Redeployment as Alternative to Dismissal

There are times when it is incumbent on an Employment Tribunal (ET) to consider a point of its own accord if the parties in the case have not raised it. In a recent case, a postal worker successfully argued before the Employment Appeal Tribunal (EAT) that the ET should have considered whether redeploying him would have been a suitable alternative to dismissal. The man had worked for his employer for more than 25 years. After several periods of absence between 2015 and 2019, some of which were…

Skiing Company Fined After Boy’s Tragic Death at Birthday Party

An indoor skiing company has received a £100,000 fine following an accident in which a 12-year-old boy died. The boy was at a tobogganing party to celebrate a friend’s birthday. He was descending the main ski slope on a toboggan when it ran into the back of a member of staff who was conducting a slope walk. The member of staff fell backwards onto the boy, who tragically died at the scene from head injuries. An investigation by the Health and Safety Executive found that the company had failed to…

Exemplary Sales Assistant Succeeds in Pregnancy Discrimination Claim

There can be few things more harmful to an employer’s reputation than a finding that it has discriminated against a worker for being pregnant. In a damning decision, an Employment Tribunal (ET) ruled that an exemplary sales assistant was dismissed because of her employer’s reluctance to shoulder the cost of her maternity leave. The woman was a model employee who worked long hours, six days a week, for a retailer that paid her the minimum wage. During the 13 months she held her job, she was…