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Drugs, dismissal and damages

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Renewi UK Services Limited v Pamment

An employer may have in place random drug and alcohol testing arrangements for employees particularly in the transport sector where employees may be required to carry out driving duties. The testing policy and potential consequences of a positive result should be made clear to employees. In Renewi UK Services Limited v Pamment the question was whether dismissal would necessarily be unfair where the employee had no driving duties and where their performance may not have been affected.

Facts

Mr Pamment, a Team Leader, had been dismissed following a drug test in work which was positive for  cannabis. An Employment Tribunal had found that it was unfair as the employer should have had regard to the fact he was not required to drive and there had been no impairment of his performance at work. There had been a finding also that the compensation should not be reduced in the circumstances even on the ground of contributory fault. The employer appealed.

Decision

The Employment Appeal Tribunal allowed the appeal. In relation to the question of fairness, the  Employment Tribunal had made the mistake of substituting its own findings in deciding that the cannabis did not affect performance and taking into account it was not Mr Pamment’s job to drive a van. It should have focussed on the reasonableness of the employer’s belief about these matters. The Tribunal had also been wrong to find that contributory conduct shouldn’t have reduced any award.

Key takeaway point

The decision highlights that the role of the Employment Tribunal in assessing whether a dismissal is fair or not is limited to deciding whether the employer’s decision was in the band of reasonable responses. It is not the role of the Tribunal to decide what decision it would have made. In relation to compensation, awards may be reduced where the actual conduct of the employee caused or contributed to the dismissal, it was not relevant to consider how the employer had acted in relation to its policies.

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