Unfair Dismissal Archives | Employment Law Services (ELS) LTD

Is failing a drug test a reason for an automatic dismissal?

Posted on 20 December 20189 June 2023 by @deliver_els

A recent decision made by the Employment Tribunal has highlighted the importance of not treating a positive drug test result as a reason for automatic dismissal.

In the case of Ball v First Essex Buses Ltd, Mr Ball was employed as a bus driver and had over 20 years’ service with his employers. Part of his employment involved a routine drug test, in which the employee was expected to provide a saliva sample. To the employee’s surprise, the drug test came back and had tested positive for cocaine. Because of this, his employers suspended him and advised him he would be required to attend a fact-finding meeting.

At this meeting the employee argued that he had not taken any drugs apart from medication prescribed by his GP and that he had arranged to have a hair follicle test to prove this. This test then came back negative.

At the disciplinary hearing, Mr Ball was informed that his employer would only consider the saliva test results and not the independent hair follicle test results as they had not been carried out by one of the companies approved testers.

It was concluded that he failed the random drug test and his employment should be terminated with immediate effect. The employee appealed but remained dismissed.

Employment Tribunal considerations

When determining whether a dismissal is fair or unfair, the Employment Tribunal will assess whether the employer acted reasonably or unreasonably. In which they will look at the procedure the employer followed: Did the employer carry out a proper investigation? Was the employee given the opportunity to take a colleague into the meeting and were they given the opportunity to appeal the decision? They will then look to see whether the reason for dismissal fell within the band of reasonable responses.

In Bell v First Essex Buses Ltd, the Employment Tribunal held that: “Given the random nature of the test; the contra-indicators of the claimants good character, age (he was 60 years old), health, etc; the possibility of cross-contamination; the possibility of mislabelling the sample; the two negative hair follicle tests; and the claimants offer to retake any drug tests, the respondents decision to dismiss was therefore outside the band of reasonable responses.”

Important points that were noted included:

The employer had not stated in his disciplinary procedure that failing a random drug test would be viewed as gross misconduct;
The investigatory officer did not give the employee the chance to dispute the drug test in line with their alcohol and drug procedure;
The dismissing and appeal officer refused to take into consideration all other justifications for the employee having failed the drug test.

On these grounds the dismissal was held as procedurally and substantially unfair.

Comment

Employers should be cautious when treating drug test results as black and white. In this situation Mr Bell’s employer failed to recognise the independent evidence presented by the employee. To reduce the risk of a claim, it is important that employers are not closed-minded and look at all the facts of the case before coming to any harsh decisions. In this situation the employee had an exemplary record and it could be argued his employers were too harsh when applying their drug and alcohol policy.

How can EmployEasily Legal Services help?

If you are an employer who requires assistance with any of the issues raised in this blog contact us today for your free consultation 0370 218 5662. 0000

Handing notice in to a job is not always a letter of resignation

Posted on 9 October 20188 June 2023 by @deliver_els

A letter that sets out one months’ notice should not be automatically assumed as a letter of resignation, an EAT Judge has confirmed.

In the case of East Kent Hospitals University NHS Foundation Trust v Levy, Judge Jennifer Eady dismissed the appeal and confirmed the tribunals earlier decision that the employee had in fact been unfairly dismissed.

In this case, the employee was offered a new role in the radiology department, as a result of this she submitted a letter to her line manager giving “one months’ notice”.

After the claimant had become unhappy in her current position, she successfully applied for a role in the radiology department – on June 10, 2016 – subject to pre-engagement checks.

Her letter to her manager, Gorton Davey read: “Please accept one month’s notice from the above date”.
On the same day, her manager responded saying: “Thank you for your letter… in which you tendered your notice of resignation. I can confirm that your last day of work within Health Records will be 8th July 2016. I would like to take this opportunity in thanking you for your hard work, dedication and contributions to a highly successful team over the years, and I wish you every success with your future employment.”

However, on 16th June, the claimants new job offering was retracted on the grounds of her poor attendance record. Because of this, Levy attempted to withdraw her notice, but her manager refused and wrote to her to confirm the date of termination, addressed the issue of outstanding holiday entitlement and filled out an employee termination form.

Mr Gorton-Davey wrote: “It is with regret that I cannot accept your request and as a result, your last day of work with us will be on Sunday, 10 July 2016. I also need to inform you that due to the number of days annual leave taken already this financial year, the Trust will be looking to recover 88 hours pay from you”.

As a consequence of this, Levy brought a claim of unfair dismissal against her employers. In April 2017, the Employment Tribunal held in favour of the claimant and held that her employers had unfairly dismissed her.

Her employers responded arguing that the wording used by Levy in her letter of notice was unambiguous. The Employment Tribunal rejected this response and said the letter could have been either a notice of intended transfer or a notice of termination. Stating that the employees’ letter would lead a reasonable observer to agree that the claimant was not ending her employment but simply making her manager aware that she intended to accept the offer.

The Tribunal also took into consideration the conditions of the claimant’s letter in that she was unaware that her employment history had potential to affect the conditional offer and that she needed to work to support herself and her family.

East Kent Hospitals University NHS Foundation Trust appealed and failed. At the EAT, Judge Eady expressed: “…once it became apparent that the offer of a position in the Radiology Department had been withdrawn, and the claimant was seeking to withdraw her notice of departure from Records, the respondent’s position was that the claimant’s employment must come to an end.

“Given its findings of fact, however, I do not consider the [employment tribunal] erred in finding that this, in context, amounted to a dismissal and not simply the acceptance of a resignation.”

Employer considerations

It is important to note, that the events in this case are rare. However, the circumstances of this case should serve a reminder to all employers to ensure a clear understanding when an employee resigns or offers to give notice of resignation. Employers should attempt to understand why the employee is resigning, the notice they intend to serve and clarify when the employment relationship will terminate.

How can Employment Law Services (ELS) help?

If you are an employer who requires assistance with any of the issues raised in this blog contact us today for your free consultation 0370 218 5662.

5 Reasons for a fair dismissal

Posted on 21 August 20187 June 2023 by @deliver_els

Dismissal occurs when an employer decides to terminate the employment relationship. And, since the Supreme Court ruled that tribunal fees were a barrier to justice, claims against employers have increased by 90%. It is important to note that the average pay out for an unfair dismissal in the tribunal is £30,000.

Terminating an employee’s employment will never be an easy decision. However, at one point it may be the right decision for you and your business. So, when you do need to do this, ensure you have one of the following 5 reasons for a fair dismissal.

(1) Conduct
You can dismiss an employee if:

• They are incapable of doing their job to the required standard
• They are capable, but unwilling to do their job
• They’ve committed some form of misconduct
“Conduct” covers a variety of different acts, from not following instructions, to theft. It is therefore recommended that employers have policies in place that detail examples of what will be classed as misconduct, as well as what will be viewed as gross misconduct.

(2) Capability
Capability is defined in the Employment Rights Act 1996 by reference to the skills, aptitude, health or any other mental trait of the employee.
However, before dismissing an employee on the grounds of capability, employers should offer the employee support and extra training to help them reach the standard expected.

(3) Redundancy
Redundancies are another form of dismissal and can happen when an employee’s job no longer exists. This may be due to the employer needing to reduce its workforce, close the business, or certain work is no longer required.
Whatever the situation, it is important employers consider these key points:

• Employees have the right to not be unfairly selected for redundancy
• Employees may be entitled to a statutory redundancy payment and notice
• Redundancies can be compulsory or voluntary

(4) Statutory illegality
This form of dismissal is not used often but would occur if an employer continued to employ someone that resulted in them breaking the law. For example, you employ a lorry driver and they lose their licence and you have no other alternative (legal) role to place them in.

(5) Some other substantial reason (SOSR)
There is no legal definition of dismissals in this category and some would suggest that this is a “dust bin” category.
Some typical examples include:
• Conflicts of interest
• When a client refuses to work with your employee and you have no other work for them to carry out
• Personality clashes
• Where the mutual trust and confidence has been broken

Please note, that even where a dismissal is potentially fair “for some other substantial reason” the employer must ensure that they have followed procedure and have acted reasonably when dismissing the employee.

How can Employment Law Services (ELS) help?
If you are an employer who requires assistance with any of the issues raised in this blog contact us today for your free consultation 0370 218 5662.