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.

Woman Sacked During Difficult Pregnancy Receives Just Compensation

Dismissing an employee for being pregnant may seem extraordinary in this day and age but it still happens far too often. In a case on point, a shop assistant who was viewed as a malingerer by her employer during her complicated pregnancy was awarded substantial compensation by an Employment Tribunal (ET). The woman was on sick leave, having been advised by her GP that she should avoid bending and lifting, when she was taken aback to receive her P45. She launched ET proceedings on the basis that…

Whistleblowing and the Need to Prove a Causal Link – Guideline Ruling

In order to succeed in a workplace whistleblowing claim, it is not enough merely to prove that you have made a protected disclosure. As one case showed, it is also necessary to establish a causal link between the disclosure and any detrimental treatment to which you have been subjected. The case involved a senior employee in a bank’s audit department. In a draft report, she expressed concerns about the bank’s risk exposure arising from a certain legal agreement. There was no dispute that she…

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…