Alcohol and drug testing in the workplace

I think we would all accept that there are legitimate reasons for alcohol and drug testing in the workplace. They provide an assurance to employers and help manage health and safety concerns. However, all too often we see cases where long serving, loyal employees are dismissed as a knee jerk reaction to a positive test result.

The case of Renewi UK Services Ltd v Pamment , serves as a reminder to employers of the importance of considering mitigating factors when contemplating disciplinary decisions.  It also reminds us that Employment Tribunals should not substitute their own findings for that of a reasonable employer when determining whether an employee has been unfairly dismissed.

Background

Mr Pamment had worked as a recycling worker for 14 years when he was dismissed for having tested positive for cannabis as part of a random drug test. Mr Pamment had a history of back pain and had been taking cannabis, alongside prescribed drugs, to assist with pain. The employer was unaware of Mr Pamment’s cannabis use having failed to undertake a return-to-work meeting with him on his return from sick leave.

Following a disciplinary meeting, Mr Pamment was dismissed for gross misconduct having been found to be under the influence of drugs which affected his performance following random drug testing in the workplace.

Mr Pamment brought a claim for unfair dismissal, arguing that the use of cannabis had not affected his performance, which the employer had never previously called into question; that he was a driver’s ‘mate’ and did not operate vehicles during the course of his employment; that his role meant he posed no health and safety risk; and that he had an entirely credible reason for taking cannabis.

The employer argued that their reasons for dismissal were justified where Mr Pamment had tested positive and was found to be over the legal limit for operating a vehicle and did not come into work free of drugs, thereby creating a health and safety issue.

The Tribunal held that that Mr Pamment was unfairly dismissed, because the employer had paid no or insufficient regard to mitigating factors, including his reasons for taking cannabis and his length of service. It found it had not been the Claimant’s job to drive and there was no impairment of his performance. The Tribunal also found the employer had overlooked the fact that evidence procured by the dismissing manager in relation to the treatment of comparators was not wholly objective and criticised the reliability of the test result.

Employment Appeal Tribunal Decision

The employer appealed. The EAT allowed the appeal, finding that the Tribunal had wrongly substituted its own findings when deciding that cannabis did not affect Mr Pamment’s performance, rather than focusing on the reasonableness of the employer’s belief about these matters. Whilst the Tribunal was entitled to have regard to the failure of the employer to consider mitigating factors, it had erred when substituting its own judgment when criticising the reliability of the drugs test and when considering that the information about comparators was tainted by the lack of objectivity.

The case was remitted back to a fresh Tribunal for reconsideration of the issues of both liability and remedy.

Comment

It will be interesting to see what determination is made by the new Tribunal when they reconsider the case. However, this case serves as a salient reminder to employers to give each case careful consideration on its own facts before deciding to dismiss. Gross misconduct should be reserved for only the most serious cases. As in the present case, use of non-prescriptive drugs can be for genuine, non-hedonistic reasons. Employers would be well advised to approach a disciplinary investigation and make their findings with an open and inquisitorial mind or risk having to defend claims of unfair dismissal and/or discrimination.

This blog was written by Kate Lea, Senior Solicitor at didlaw, and first appeared on Daniel Barnett’s Employment Law Bulletin.