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

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.

Representing Yourself in Employment Proceedings is a Recipe for Muddle

Those who choose to represent themselves in employment proceedings, without the benefit of legal advice, often have enormous difficulty in getting their real complaints across. That was certainly so in the case of a woman who claimed to have been so badly treated by her employer that she was forced to resign. The woman had been in her job for less than three months when she resigned. The fees her employer had paid to a recruitment agency when she was taken on – which came to £945 – were…

Equality and Diversity Training Needs Regular Refreshment to Be Effective

The provision of workplace equality and diversity training can afford employers a powerful defence in employment proceedings. As one case showed, however, such training is wont to become stale in employees’ minds over time and is unlikely to be viewed as effective unless regularly refreshed. The case concerned a senior data analyst of Indian descent who was subjected to racist comments by a colleague who, amongst other things, regularly referred to his skin colour and urged him to go and work…

Financial Consultant Who Failed to Disclose Bankruptcy Fairly Dismissed

You would generally be right to think that what goes on in your life away from your workplace is nobody’s business but your own. In one case, however, a financial consultant’s failure to disclose his bankruptcy to his employer was ruled by the Employment Appeal Tribunal (EAT) to be a sufficient ground for dismissal. The man, who worked for an estate agency, was suffering financial difficulties after prolonged periods on sick leave and was declared bankrupt at his own behest. His bankruptcy came…