The answer to that is yes as demonstrated by the case of Glenholmes v Network Rail.
The Claimant in this case was employed with Network Rail as an on-train technician from 2014. As this was a safety-critical position the Claimant was subject to routine drug and alcohol tests. In 2020 following one such test the Claimant tested positive for cocaine.
The Claimant was suspended. At the investigation stage the Claimant produced a written statement providing an explanation for the positive result. He stated that he had consumed “inca tea” purchased at a market that was labelled as a digestive aid. The product did not list its ingredients on the packaging but after doing some research the Claimant discovered it contained cocaine.
A disciplinary hearing was set to take place in November 2020. This did not go ahead due to a period of sickness absence by the Claimant. Simultaneously the Claimant successfully raised a grievance regarding problems with the minutes taken at the investigation stage. As a result the disciplinary chair was replaced.
In April 2021 the Claimant paid for another urine test to be conducted on the original sample. The result was four times over the normal levels and was indicative of substance misuse. It was concluded in the judgment that the Claimant did not appear to understand that coca leaves and cocaine were the same thing.
The disciplinary hearing was held in June 2022, the delay being due to the Claimant’s poor mental health and related absence. The sanction was summary dismissal and the Claimant’s appeal was unsuccessful.
The Claimant went to the Employment Tribunal with a claim of unfair dismissal. Interestingly, the Respondent admitted from the outset that the dismissal was procedurally unfair but sought to argue that the Claimant should receive no basic or compensatory awards.
In making their decision the tribunal found it relevant to consider that the Claimant took prescribed medication and experienced indigestion as a side effect. He had been taking over the counter medication to alleviate this. He replaced this medication with the tea, and it alleviated his indigestion within a day or so. The tribunal concluded if this tea was so effective the Claimant should have attempted to discover information regarding its active ingredients.
When assisting the Claimant to try to establish what might have caused the failed drug test, the Claimant’s sister, a retired nurse with some 38 years’ experience, was immediately suspicious of the tea. Under cross-examination she said that the tea “stood out” because of the South American connection and because it did not contain a list of ingredients. The tribunal concluded that if the Claimant’s sister was concerned the Claimant should have felt the same way.
Ultimately, the tribunal concluded that the Claimant was wholly blameworthy. There were no other contributing factors to his dismissal other than the failed drug test which he could have avoided if he had done the research he did after the failed drug test- either before he drank the tea or shortly thereafter once he was aware of its efficacy- but he chose not to. Due to this, whilst the Claimant was unfairly dismissed, he received no compensation.
For employers, it is important to note that tribunals will look at cases in the round and consider the behaviour and conduct of both parties when making their decisions.
If you have any questions on any of the issues raised in the above article, please contact Natalia Milne.