• Robert Spicer

Unfair dismissal: drugs test: contributory conduct

UNFAIR DISMISSAL

Contributory conduct

Case Renewi UK Services v Pamment EA-2021-000584-DA

Facts R tested positive for cannabis as part of a random drugs test. He was dismissed on the basis that he had been under the influence of drugs which affected his performance. The ET found that he had been unfairly dismissed for the following reasons:

· The employer had paid no or insufficient regard to mitigating factors

· It was not R’s job to drive

· There was no impairment of R’s performance at work

· The dismissing manager had applied evidence from an HR employee whi was not totally objective.

The ET also found that the compensation award should not be reduced in accordance with Polkey or in relation to contributory conduct.

The employer appealed to the EAT.

Decision 1. The appeal was allowed in relation to unfair dismissal.

2. The ET had wrongly substituted its own findings rather than focussing on the reasonableness of the employer’s view.

3. The ET should examine the actual conduct of the claimant and ask itself if that conduct caused or contributed to the dismissal.

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