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.

Whistleblowing and the Public Interest – Guideline EAT Ruling

Workplace disclosures of information can only qualify for whistleblowing protection if they are made in the public interest – but what exactly does that mean? Guidance on that issue was given in an important Employment Appeal Tribunal (EAT) ruling. Whilst working for a law firm as a consultant, a solicitor made disclosures in the form of emails in which he expressed the view that a client was being overcharged. After his consultancy was terminated, he complained to an Employment Tribunal (ET)…

High Court Apportions Liability for Worker’s Construction Site Fall

Construction workers often do not have formal employment contracts and, in a world where contractors and subcontractors proliferate, it can be hard to tell where legal responsibility lies in the event of an accident. That was certainly so in a High Court case concerning a labourer who suffered catastrophic injuries in a workplace fall. The worker was engaged in building a mezzanine office at factory premises when he fell onto concrete, fracturing his skull. He suffered a severe brain injury,…

Disability Discrimination – Diabetic Cake Shop Worker Compensated

Discrimination against disabled employees is a social evil with which Employment Tribunals (ETs) will have no truck. In one case, a cake shop worker who was dismissed because of her diabetes was awarded thousands of pounds in compensation. The woman’s condition meant that, without daily insulin injections, she would suffer a hypoglycaemic episode and fall into a coma. At the date of her dismissal, she was in stage B renal failure. In sacking her by text, her manager expressed the view that she…