Mr C Pamment v Renewi UK Services Ltd: 3201672/2020
EMPLOYMENT TRIBUNALS
Case No 3201672/2020
Between
Mr C PammentClaimantRenewi UK Services LtdRespondent
Before
Employment Judge HousegoIn person for claimantStewart Healey (instructed by Solicitor) for respondentDate 29 April 2021
JUDGMENT
[1]The Claimant was unfairly dismissed by the Respondent.[2]A remedy hearing will now be listed.
REASONS
Summary
[1]The Respondent says that it dismissed the Claimant for misconduct. That was failing a random drugs test, revealing cannabis. They say this was gross misconduct justifying dismissal, particularly as he was a driver. Mr Pamment says that he while he was a team leader, for vehicles he was a driver’s mate so there was no risk to the public, and no criticism had been made of his work. He says that took cannabis to help with severe and chronic back pain, and that the Respondent has failed to follow its clear policies to help people with an issue with alcohol or drugs, which should have led them to help him, not dismiss him, after 12 years excellent service. He suggests that his extended absences in the recent past, due to his back, meant that this was a good excuse to get rid of him.
Evidence
[2]I heard oral evidence from Mr Pamment, and for the Respondent from Marc Congdon, who made the decision to dismiss Mr Pamment, from Simon Lee, who heard his appeal against dismissal, and from Lisa Bailey, of human resources.[3]The Respondent provided an agreed substantial bundle of documents and a skeleton argument, and a cast list and chronology.
Law
[4]The reason put forward is conduct, which is a potentially fair reason for dismissal.1 Was that the reason? If yes, did the Respondent have a genuine belief on reasonable grounds of misconduct by the Claimant? If yes, was it misconduct justifying summary dismissal? (No notice period was paid.) Was dismissal within the range of responses of a reasonable employer? Was the dismissal procedurally fair? If not what were the chances of dismissal if there had been a fair procedure? If there was an unfair dismissal did the Claimant cause or contribute to her dismissal by his conduct?[5]The decision whether a dismissal is fair or unfair involves findings of fact about what the employer did, and an assessment of whether it was fair or unfair. Findings of fact about contributory conduct are findings of fact, on the balance of probabilities, about what the Claimant did, or did not, do.[6]In deciding fairness Section 98 (4) of the Employment Rights Act 1996 (“the Act”) provides “…. the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and –(b) shall be determined in accordance with equity and the substantial merits of the case”. There is no burden of proof, for it is an assessment of the fairness of the actions of the employer. It is not for the Tribunal to substitute its own view for that of the employer. The test in Burchell (reference below) is whether the employer had a genuine belief in misconduct on reasonable grounds, after proper investigation.[7]I have also considered section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992, and in particular section 207A(2), and the ACAS Code of Practice 1 on Disciplinary and Grievance Procedures (“the ACAS Code”).[8]Compensation for unfair dismissal is dealt with in sections 118 to 126 inclusive of the Act. Potential reductions to the basic award are dealt with in section 122. Section 122(2) provides: "Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice 1 S98(2)(b) Employment Rights Act 1996 was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the Tribunal shall reduce or further reduce the amount accordingly.”[9]The compensatory award is dealt with in section 123. Under section 123(1): "the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer".[10]Potential reductions to the compensatory award are dealt with in section 123. Section 123(6) provides: "where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.”[11]There is provision for increase in compensation of up to 25% if the Acas Code is not followed by an employer which unfairly dismisses an employee.[12]If the claim is successful, the Judge must set out the remedies for unfair dismissal of reinstatement or re-engagement, and ask the Claimant if he wishes to seek such an order.2 The primary remedy is an order for reinstatement or reengagement.3 It is such an order that Mr Pamment seeks.[13]I have considered the cases of Post Office v Foley, HSBC Bank Plc (formerly Midland Bank plc) v Madden [2000] IRLR 827 CA; British Home Stores Limited v Burchell [1980] ICR 303 EAT; Iceland Frozen Foods Limited v Jones [1982] IRLR 439 EAT; Sarkar v West London Mental Health NHS Trust [2010] IRLR 508 CA; Sainsburys Supermarkets Ltd. v Hitt [2002] EWCA Civ 1588; Software 2000 Ltd v. Andrews & Ors [2007] UKEAT 0533_06_2601; and Polkey v A E Dayton Services Ltd [1988] ICR 142 HL. The range of responses of the employer is not infinitely wide but is subject to S98(4): Newbound v Thames Water Utilities [2015] EWCA Civ 677, paragraph 61. It is unfair to dismiss automatically by reason of gross misconduct: Department for Work and Pensions v Mughal (Unfair Dismissal: Reasonableness of dismissal) [2016] UKEAT 0343_15_1406. I have considered the guidance in Software 2000 Ltd v. Andrews & Ors [2007] UKEAT 0533_06_2601 about remedy.[14]The reason given by the Respondent was misconduct which is a potentially fair reason for dismissal, and so the first question is whether that was the reason. If it was the reason the next issue is whether it was fair, or not. Those latter questions are determined by reference to the findings of fact, but there is no standard or burden of proof.[15]Accordingly, if the reason is shown to be misconduct, the starting point for the issue of fairness is the words of section 98(4) themselves. In applying that 2 Sections 112-115 Employment Rights Act 1996. 3 S116 Employment Rights Act 1996 subsection the Tribunal must consider the reasonableness of the employer’s conduct, not simply whether it considers the dismissal to be fair. In judging the reasonableness of the dismissal the Tribunal must not substitute its own view of the right course to adopt for that of the employer. In many (though not all) cases there is a band of reasonable responses to the employee’s conduct within which one employer might take one view, and another might quite reasonably take another. The function of the Tribunal is to determine in the particular circumstances of each case whether the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.[16]The correct approach is to consider together all the circumstances of the case, both substantive and procedural, and reach a conclusion in all the circumstances. A helpful approach in most cases of conduct dismissal is to identify three elements (as to the first of which the burden is on the employer; as to the second and third, the burden is neutral):(i) that the employer did believe the employee to have been guilty of misconduct;(ii) that the employer had in mind reasonable grounds on which to sustain that belief; and(iii) that the employer, at the stage (or any rate the final stage) at which it formed that belief on those grounds, had carried out as much investigation as was reasonable in the circumstances of the case. The band of reasonable responses test applies as much to the question of whether the investigation was reasonable in all the circumstances as it does to the reasonableness of the decision to dismiss. The Respondent’s policies[17]The Respondent has a drugs and alcohol policy, introduced on 01 November 2018 (65). The letter introducing it, of 09 October 2018 stated: “The updated policy reflects our new values and recognises that your safety is our number one priority. It also underlines that we are all accountable for one another, and we should also offer support to each other during difficult times.”[18]The 8 policy objectives included: “To support employees experiencing alcohol and drug problems.”[19]“Drug abuse” was defined as including the use of illegal drugs. Use of prescribed drugs was excluded from the definition. It was a policy rule not to come to work under the influence of drugs or alcohol.[20]The policy has a section headed “misconduct”. It states that: “Our policy is principally concerned with ongoing issues of substance misuse. Be classed these as ‘capability issues’ as the problem will primarily impact how the individual performs the job. In circumstances where an employee breaches the policy on an individual case, such as reporting for work drunk or being under the influence of drugs at work, we will class this behaviour as a contact issue and handle it via the normal disciplinary procedures.”[21]It also states: “If an employee admits to having a substance misuse problem, the disciplinary process may be held in abeyance. This will be subject to the successful outcome of treatment and improvement of performance/job capability. If the employer subsequently admits to a substance misuse problem following an instance of serious misconduct, we may carry out the support route and the disciplinary route in tandem.”[22]A section headed “Referral by management” states: “Managers will offer support to employees who are suspected of having an alcohol or drug problem.”[23]There is a disciplinary policy (70). In a list of matters stated to be gross misconduct is: ”Being under the influence of alcohol, drugs or any substances which impact performance and those around you.” (Sic)[24]There is Health and Wellbeing Policy (77). It has a section on drugs and alcohol (80). It states: “While Renewi, where it is aware that an employee may have a problem with substance abuse will concentrate on rehabilitation: … any employee discovered to be under the influence of alcohol or illicit drugs may suffer disciplinary action – such misuse is defined as gross misconduct by Renewi….”[25]The Alcohol, Drugs and Medicines policy has a section on misconduct4. It states: “Our policy is principally concerned with ongoing issues of substance misuse. We class these as “capability issues” as the problem will primarily impact on how the individual performed their job. In circumstances where an employee breaches the policy on an individual case, such as reporting for work drunk or being under the influence of drugs at work, we will class this behaviour as a conduct issue and handle it via the normal disciplinary procedures.” Submissions Respondent[26]Renewi say that the drugs policy is not relevant for it relates to those with substance abuse problems – addictions – and Mr Pamment had never said he had such a problem. He said that he had not taken cannabis since the test on 11 March 2020, so it was plain that was the case.[27]He must have been under the influence of cannabis given that his level was many times the cut-off level of 15, and the limit for driving a vehicle was only 2. While the decision makers said that he drove vehicles and it was plain at the 4 Page 3 of 4, page 68 hearing that he would do so only rarely, and they had no information that he had done so since he returned on 06 January 2020, there was a risk that he might do so in future. It was not challenged that he had not taken cannabis before December 2019, so could not have driven while under the influence of cannabis before June 2019. While he said that he would not take it again there was the risk that he might relapse. That he said he had not taken it since 11 March 2020 and offered regular testing was not, it was submitted, to the point.[28]He had not disclosed this to his manager and there had been ample opportunity to do so after he returned to work.[29]Nor had this been prescribed by his doctor. It was an illegal drug. He was in a management role and this reflected badly on him and the company.[30]Since he was under the influence of cannabis (the level was so high it was submitted that this was self evidence) he was prone to making bad decisions for those he was leading. While it was accepted that there was no incidence of such bad decision making, and no-one suspected that he was other than fully able to carry out his role effectively, that did not necessarily mean that some decisions were adversely affected.[31]He had not told his GP so there was the possibility of the combination of the drugs having an unknown effect[32]Consistency was important, and of all 7 tests failed throughout the UK all had resigned or been dismissed. The level of the test, and that it was an illegal drug undisclosed to the employer was important.[33]It was not unfair for the decision maker to ask Lisa Bailey after the hearing, and before the decision to dismiss, about what had happened about other people who had failed a random drugs test. Mr Pamment had already given his plea in mitigation and there was nothing more he could have said had he known. Claimant[34]Mr Pamment said that there had been no consideration of his long service, and his reason for taking cannabis. They had said he was “under the influence” of an illegal drug at work, but he had worked entirely satisfactorily from 06 January 2020 until 11 March 2020, and he was most certainly not “under the influence” in the sense that his performance was adversely affected for it was fully accepted that it had not been.[35]It was entirely wrong to use driving as a reason – he had not got a licence for the vehicle he worked in every day, and his colleague drove that. While he would drive a company vehicle if asked, he never had been asked. There was no evidence at all to support this reason for dismissal.[36]His return to work had not been in accordance with policy, and he got on well with his manager. He should have been asked about medications at that interview and that would have been his opportunity to tell his manager, and he would have done so.[37]It was unfair to say there was a risk he might return to cannabis by the meeting of 30 March 2020 he had not taken it since before 11 March 2020, and had offered to have regular drugs tests, even at his own expense.[38]The person who suspended him was not his manager or his manager’s manager, and they were the only people who could suspend him, according to the policy.[39]The health and safety person should have conducted the investigation, not the person who suspended him, John Maara.[40]It was wrong for Lisa Bailey to be involved for she had a bad relationship with him, and he said that Marc Congdon had referred to “we” having decided to dismiss. She had been consulted by Marc Congdon after the hearing but before the decision, and she had influenced the outcome unfairly.[41]Ms Bailey had told him that everyone gets dismissed for reasons of consistency, and that was not fair given his particular circumstances (which he set out, and are apparent from what follows).
Findings of fact
[42]Mr Pamment started work for Renewi (or rather for a predecessor company – there have been transfers of undertaking) about 14 years ago. He became a full time employee on 01 October 2010. He was dismissed on 01 April 2020, following a meeting on 30 March 2020. The reason for dismissal was that Mr Pamment was recorded with a “non-negative” random test result for cannabis, that test being taken on 11 March 2020. He was not paid for a notice period. The dismissal was said to be for gross misconduct.[43]From December 2019 onwards Mr Pamment had taken cannabis some nights to help with his acute and chronic back pain and to help him sleep. This was not disputed or challenged by the Respondent.[44]Mr Pamment blamed Lisa Bailey for him taking the test, thinking that she had made sure he was on the list. I do not think this at all likely, but even if it was so it is not to the point, as the test result was what it was, and the policy is that the Respondent is entitled to test people, and Mr Pamment, sensibly, agreed to the test.[45]The test showed positive results for opiates and for cannabis: 45.1. That for cannabis was greater than 50ng/mL, that being the limit of the test’s calibration. The cut-off (pass) level was 15 ng/mL. 45.2. The result for opiates was greater than 2,500, above the limit of calibration. The cut-off level was 300ng/MmL. 45.3. There was also a non-negative result for morphine of 977, the cutoff level being 300ng/mL[46]The opiates and morphine were from prescription medicines, and so were not the reason for dismissal. Mr Pamment had not disclosed the medications as he had not been asked about medications, and had not had a return to work interview after 6 months absence for back problems, returning to work on 06 January 2020.[47]Mr Pamment had been off work with severe back paid for 6 months. He returned only on 06 January 2020, after being off since June 2019. Despite this being a 6 month absence there was no return to work meeting. Mr Pamment’s line manager was not available. He filled in the form himself, and the team leader with whom he worked countersigned it, and it went to human resources. Renewi accept that this was not within their policies and was not as it should have been. Mr Pamment says this is relevant, because he got on well with his line manager, and had there been a full chat about things he would have told his line manager about the beneficial use of cannabis. On the balance of probabilities I find that he would. Mr Pamment was an entirely credible witness.[48]In its grounds of resistance Renewi devote considerable space to an analysis of Mr Pamment’s absence record over 9 years (paragraphs 11 and 12). No reason was given in the hearing as what relevance this had, or to the reference to absenteeism procedures being invoked in 2012. Mr Pamment does not, however, assert that this was a pretext to get rid of him for his sickness absence. Nor in the hearing did Renewi say that it was of relevance to any issue before me.[49]What is undoubted is that Mr Pamment’s back problem was entirely genuine. He had frequent visits to the doctor. He was due to have an epidural injection. He was given various different medications to help the pain, including morphine patches. None seemed to work for him. In December 2019 a friend told him that cannabis helped, and he bought some from a friend (whether that friend or another is immaterial). It worked for him, and helped him sleep, the pain being a problem preventing him sleeping well. This was not something he discussed with his GP. Eventually his medication, perhaps with the cannabis, was effective enough for him to return to work.[50]During his absence Lisa Bailey from human resources kept in touch with him. Mr Pamment did all that might reasonably be required of him in keeping his employer informed. Ms Bailey was assiduous in her contact with him to the extent that it became stressful for Mr Pamment, who was finding the unremitting and long standing pain hard to deal with. She would text him and he would reply. She visited him. He asked her to deal with his GP, but Renewi does not do this, relying on the employee and occupational health reports.[51]Mr Pamment became frustrated at the frequency of Ms Bailey’s requests for information. He had told her of his treatment as it progressed. On 17 September 2019 Ms Bailey texted to ask how he was. Mr Pamment said he had a scan on 24th and an appointment on 25th, but although he chased things up noone came back to him. He was no better. On the same day, Ms Bailey asked about blood in his urine. Mr Pamment replied to say that was what the scan was about, on 24th. On 24th Ms Bailey texted him to ask how it went and whether she could call him on 25th after his appointment. Mr Pamment replied that the scan had been cancelled and was rebooked for Saturday. On 26th Ms Bailey texted again asking how he was feeling, whether he had his appointment on 25th, whether he had any update on treatment and asking if she and Mr Pamment’s manager could come and visit him again “just for a catch up”. Mr Pamment responded the same day: “I’m not being funny but nothing has changed in the two days, I didn’t have a GP appointment I had an appointment with the consultant at the private hospital about my abscess. I have kept all my letters so if you need to see them I’ll show you, I really don’t see why you need to come round my house again. I’m so stressed about all this at the minute and you ain’t helping because all your messages wanted me to explain everything, they are stressing me out more, if you need any more info please contact my doctors, they are happy to help”.[52]Ms Bailey responded to say that she would write to him to remind him of his obligations as an employee, and of theirs as an employer.[53]Mr Pamment is correct is saying that Ms Bailey, and the Respondent as a whole took Mr Pamment’s comment badly, and that it affected their relationship with, and attitude to him adversely. This is evident from the pleaded defence5 which referred to this (it should have been an irrelevance to the issue of fairness or otherwise of the dismissal) stating: “Due to the frustrated and unacceptable manner in which the Claimant communicated to Miss Bailey, it was escalated to the Claimant’s line manager, Ian George, senior operations manager who sent a letter to the claimant to set up another welfare meeting on 10 October 2019.” (Emphasis added.)[54]I find that Mr Pamment was not out of order in complaining about the level of reporting he was being required to undertake to Ms Bailey, particularly as the Respondent refused to contact his GP for updates, relying instead on occasional occupational health assessments (one was arranged for 31 October 2019 as a result of this exchange). This a complete overreaction by the Respondent, and it is relevant to any assessment of their approach to Mr Pamment that their feelings about this continue to the date of the hearing6.[55]Mr Maara suspended Mr Pamment. This was not in accordance with company policy as only Mr Pamment’s line manager, or that person’s own line manager had the authority to do so. Mr Pamment does not think this was fair. I do not find this has any relevance to the decision to dismiss or to the appeal, with which Mr Maara was not involved. Mr Maara also investigated. Mr Pamment says that the health and safety person in the Respondent, Mr Anderson, should have done so. Mr Anderson was at a meeting, but did not take charge of the investigation. That is significant not for the reason Mr Pamment gives, but because it underlines that this was not, and never was, a health and safety matter.[56]Mr Congdon wrote on 24 March 2020 to call Mr Pamment to a disciplinary hearing7. Mr Congdon started work with the Respondent only on 17 February 2020. He had no previous experience in the waste industry. He is an engineering 5 At paragraph 14 6 Being referred to in the grounds of resistance, as above 7 Page 120-121 manager at a different site. He was an appropriate person to take the meeting.[57]The hearing was on 30 March 2020 and was a telephone discussion, it being shortly after the 1st lockdown started. Mr Congdon dismissed Mr Pamment.[58]After that discussion but before making his decision Mr Congdon telephoned Ms Bailey to ask what had happened to others. She told him that everyone who had failed a drugs test had been dismissed if they had not resigned. It was 7 people. This was part of Mr Congdon’s decision making process. It influenced his decision to dismiss.[59]After that Mr Pamment spoke to Ms Bailey. She told him that there was a need for consistency of decision making and that everyone else who had failed a drugs test had left the company. Mr Pamment was (understandably) emotional. He had thought that he would work for Renewi until he retired. He speaks ordinarily in a loud voice (this was the case in the hearing). He has no history of poor behaviour at work. I find that he was not aggressive in that conversation. He was exercised by Ms Bailey telling him that there was a need for consistency of decision making, which he (rightly) felt that whatever he said he was always going to be dismissed.[60]Mr Lee held the appeal. He was a suitable person to take the appeal, which was on 22 April 2020, in person. He dismissed that appeal, by a one page letter of 29 April 20208. That letter gave reasons:• I do not believe the decision was personal or that the decision was in any way related to a period of long-term absence at the end of last year.• The evidence I have gathered from our drugs and alcohol testing providers clearly shows that you had randomly been selected for a test on 11 March and were not on a reserve list.• A fair investigation and disciplinary process was followed in line with the company’s policies and procedures.• At no point did you discuss your cannabis use with management or seek any support from the company prior to being tested positive for the use of cannabis.• You tested positive for cannabis because you use this drug, and this is was not under prescription from your GP and is in breach of the companies alcohol, drugs and medicines policy specifically; we define drug abuse as the use of illegal drugs, the deliberate misuse of prescribed or over-the-counter drugs, and use of solvents, either intermittent or continuous, which interfere with health and/or social functioning and/or work capability or conduct. 8 Page 143
Conclusions
[61]Renewi rely on Mr Pamment being “under the influence” of cannabis. He had a substantial trace of that drug in his system. His performance was not adversely affected. The phrase “under the influence” has as an essential component that performance is not as good as it would be without the ingestion of the drug. That was accepted not to be the case for Mr Pamment. There was no issue with his performance.[62]Nor is it helpful to refer to the legal limit for driving as 2ng/mL. The random test had a cut-off point of 15, over 7 times that figure, to cover accidental exposure to cannabis from others. 7 times the alcohol figure of 35 would leave a person, at best comatose. It is not a parallel, and the legal limit for driving with cannabis is effectively zero tolerance, which is plainly not the case for the random test, as the lower limit is to cover accidental exposure.[63]It was submitted that as the figure was above the maximum calibration it was extremely high. However no explanation was given as to why this was the maximum test result. The test is described as initial, and requiring laboratory assessment for full accuracy.[64]The results for opiates and morphine were ignored as they were prescribed drugs. The level for opiates was also above the maximum recordable in this test. No one from Renewi had been concerned to find out about his medication on his return, and as he was considered able to undertake all duties when over the maximum for opiates (and way over the morphine level also) it is illogical to say that (because the cannabis was not prescribed) it affected performance, when the prescribed drugs did not, particularly (and perhaps surprisingly) as the combination of all 3 had not prevented Mr Pamment carrying out his role entirely effectively.[65]The pleaded case is summed up in paragraph 37 of the ET3. It states: “The Respondent avers it was a significant and dangerous amount of cannabis in the Claimant’s system given his safety critical and driving duties. The Respondent considers that this is strong evidence that the Claimant: i. did not come to work free from the effects of illegal drugs and had a significant and perilous presence of cannabis in his system during working hours arising from his consumption during normal working hours; ii. was unable to legally drive a motor vehicle on the public highway and on the ELWA sites pursuant to the Road Traffic Act 1988 due to the significant presence of cannabis in his system; iii. created a health and safety risk to himself, the Respondent’s employees, ELWA’s customers and the public as his behaviour and abilities would have been impaired due to the significant presence of cannabis combined with the effects of the codeine and morphine medication in his system; iv. was in breach of the AD&M Policy and the Respondent’s driving policy which stated “we do not tolerate the following behaviours:… Driving under the influence of alcohol or drugs that may affect your ability to drive.”[66]The difficulties with this justification for dismissal are that: 66.1. The statement that the amount of cannabis was “perilous” is speculation, and not borne out by Mr Pamment’s performance at work. 66.2. There is no evidence that the Claimant drove any company vehicle after returning to work on 06 January 2020, and it was not his job to drive a vehicle. 66.3. It is a presumption without evidence that the Claimant’s behaviour and abilities would have been affected, and there was no concern raised about his work from 06 January 2020 before the test on 11 March 2020. 66.4. Mr Pamment did not drive a vehicle under the influence of drugs. 66.5. While the role is said to be “safety critical” it was not, in practice. Mr Pamment drove round as driver’s mate, delivering orange sacks and tending to their recepticals. He was not at the sharp end of recycling machinery. Mr Congdon knew this as Mr Pamment told him in the telephone call that was the dismissal meeting9.[67]Marc Congdon dismissed Mr Pamment. His dismissal letter10 states: “I understand your recent poor health condition and appreciate your honesty surrounding all the reasons for starting to smoke cannabis. However, I must consider the Company position in my decision and therefore conclude that the above act constitutes gross misconduct, namely ‘being under the influence of alcohol, drugs or other substances which impact performance or those around you’ and ‘Gross incapability e.g. loss of faith or trust and confidence in ability to perform role as per specific examples of gross misconduct in the Company Disciplinary policy. As a result, you are summarily dismissed on the grounds of gross misconduct.” (Sic)[68]Mr Congdon’s witness statement says11: “This letter was not well worded. The reason that Carl was dismissed was for the reasons I have given but it all stems from the fact that he had failed the drugs test and had attended work under the influence of drugs and so breached the drugs and alcohol policy.”[69]After the telephone conversation with Mr Pamment, but before telling Mr 9 Page 128. 10 Page 129-130 11 Paragraph 15 Pamment his decision (and I found as a fact12, having heard both Mr Congdon and Ms Bailey’s evidence, before he made that decision) Mr Congdon telephoned Ms Bailey and asked her what had happened in other cases. She told him that there had been 7, and that all 7 had either resigned or been dismissed, and that influenced his decision. It was submitted that this made no difference as Mr Pamment had said all he could say in any event. Mr Pamment would inevitably have said that there cannot (or should not) be a blanket policy to dismiss everyone who failed a drugs test. That is what the Company policy is.[70]The difficulty with these reasons is that: 70.1. Mr Congdon was clear that he was heavily influenced by the fact, conveyed to him by Ms Bailey, that failing a drugs test always resulted in the person leaving. 70.2. While he said that each case was decided on its merits, he was unable to suggest any circumstance when failing a drugs test would not result in dismissal (if the person did not resign). His attempt to do so by referring to prescription medications is not sound, as that would be a “non-negative” result that was permissible, and so not a failed test at all. 70.3. There was no evidence that his performance was adversely affected, such that he was “under the influence” of illegal drugs. 70.4. Mr Congdon’s witness statement13 says that he was aware that some people have cannabis prescribed for them for pain. He did not say where he got this information from, and since it is an important part of the Respondent’s case that he could have got the cannabis as a medication prescribed by his GP, but did not, I find that this was a mistaken reason for an adverse opinion of Mr Pamment’s consumption of cannabis. 70.5. While it was said that mitigating factors were considered, I find as a fact that they were not. For the avoidance of doubt these were: 70.5.1. Mr Pamment had given an entirely credible reason why he took the cannabis. He was not a recreational user. 70.5.2. He had said that he had stopped and it would never recur. 70.5.3. He had offered to have regular tests and to pay for them himself. 70.5.4. He had 10 years’ service and 14 years’ work for the Respondent and its predecessors. 70.5.5. There had been no incidence of poor performance and no concerns raised about him or his work. 12 Paragraph 58 13 At paragraph 9[71]It follows that first Mr Congdon found that failing a drugs test was inevitably gross misconduct, and that gross misconduct for such a matter would always mean dismissal. That is an error, as set out above14.[72]The witness statement of Simon Lee augmented by his oral evidence drew attention to this not being a borderline fail. However he stated15 “This is significant given that he was required to drive a van as part of his job role.” Mr Pamment was not required to drive a van. I do not find it good reason to dismiss Mr Pamment, as Mr Lee said in his oral evidence, that he might a) relapse from abstention from cannabis in future and then b) be asked to drive a van, which happened only very rarely, and that c) he would be above the legal cannabis level when he did so, particularly when Mr Pamment had offered regular tests at his own expense.[73]Mr Lee found it significant that Mr Pamment was not prescribed cannabis by his GP. This lacks realism. There is no evidence put before me that GPs prescribe cannabis for back pain, and my limited judicial knowledge is that it is done so in very limited circumstances such as for severe multiple sclerosis.[74]Mr Lee found it important that Mr Pamment had not told the company he was taking cannabis for medicinal reasons. He did not take account of the fact that the opportunity to do so in a return to work meeting did not exist. Mr Pamment could have told his manager later, and Mr Pamment is correct in saying that such a meeting should have involved discussion of his situation which would have led to this being talked about: rather different to an unsolicited disclosure.[75]Mr Lee’s witness statement states: “I did consider the Company Alcohol, Drugs and Medicines Policy and in particular how the policy defines drug abuse as the use of illegal drugs, the deliberateness use of prescribed or over the counter drugs, and the use of solvent, either intermittent or continuous, which interfere with health and/or social function and/or work capability or conduct.” The use of cannabis by Mr Pamment had not interfered with his health, social function, work capability or conduct.[76]Mr Congdon and Mr Lee both thought (probably wrongly) that Mr Pamment could have got the cannabis from his GP, and they were concerned that there might be complications from the interaction of the drugs he was prescribed with the cannabis. In fact there were not such complications, as his work was not criticised in any way, but there is a different point. Mr Congdon and Mr Lee would not have been concerned had this been a prescription drug, which they thought it could have been. They had no concerns over Mr Pamment’s work.[77]If follows, as a simple matter of logic, that the sole reason for dismissal 14 Para 13: Mughal 15 Para 6 was that the cannabis was illegal not legal.[78]Mr Lee found it relevant that Mr Pamment had not disclosed his use of cannabis, and that he had no dependency issue, such that that policy was not applicable. In a Company with such an enlightened policy it is unfortunate that neither Mr Congdon nor Mr Lee thought it relevant that Mr Pamment had a long standing and acute back pain problem and that this was the reason why he had taken cannabis. This is in stark contrast with the commendable approach to those with substance abuse problems. Mr Pamment’s motivation was not hedonistic. This is all relevant to the assessment of fairness under S98(4).[79]Mr Lee was entirely clear in his oral evidence16 that Mr Pamment fell within the capability section of the Alcohol Drugs and Medicines policy (and so fell to be helped), but nevertheless upheld his dismissal for misconduct when there was no evidence (as would be required to do so, under that policy) that he had attended for work “under the influence” of drugs: other than that he had shown a non negative response to a drugs test for cannabis (and failure levels for opiates and morphine).[80]In summary I find the dismissal to have been unfair (and outside the range of responses of the reasonable employer) for the following reasons: 80.1. No (or inadequate) account was taken of the genuine reason for taking the cannabis. 80.2. Likewise for of his long unblemished service. 80.3. Ms Bailey was consulted before the decision was taken, and after the telephone disciplinary hearing, and her information (that everyone was dismissed if they did not resign) was a factor in Mr Congdon’s decision to dismiss Mr Pamment. 80.4. It was taken to be gross misconduct because it was a failed test, without any assessment of the circumstances. 80.5. It was a matter of policy that everyone who failed a drugs test would be dismissed if they did not resign. Even if it was gross misconduct that is unfair, as even for gross misconduct there must be consideration of whether dismissal is fair. 80.6. It was a key part of the justification for the decision that there was a risk to the public and colleagues by Mr Pamment driving a company vehicle, said to be an integral part if his job, when it was not, and there was no evidence that he had driven a company vehicle since 06 January 2020. (The summation of the grounds of resistance17 has justifies the dismissal in part by wrongly asserting that Mr Pamment had breached the Road Traffic Act 1988). 80.7. There was an unevidenced reliance on health and safety risks18 16 In answer to questions put to him in re-examination 17 At para 53, page 30 18 See para 53 of the grounds of resistance when there was no evidence of any such risk (Mr Pamment being driver’s mate in a 7.5 tonne truck driven by another delivering orange sacks around London Boroughs, and maintaining the bins containing them). 80.8. There had been no concerns about Mr Pamment’s work or attitude (or in any other way) after his return to work on 06 January 2020. 80.9. No account was taken of the ethos of the Respondent towards those with difficulties, notably the drugs and alcohol section of the Health and Wellbeing Policy19 which states “… Renewi, where it is aware that an employee may have a problem with substance abuse, will concentrate on rehabilitation”. That expressly does not preclude disciplinary action for those at work “under the influence of alcohol or illicit drugs”, but that did not apply to Mr Pamment as that requires an impairment of performance and there was none in his case. 80.10. The policy on alcohol drugs and medicine20 expressly commits the Respondent to supporting employees with drug problems, and that expressly includes illegal drugs (set out in the definitions section of the policy). 80.11. Dismissal was for misconduct, when Mr Pamment was accepted to fall within the non disciplinary part of the drugs policy. 80.12. Ms Bailey was not wholly objective, given the texts of September 2019 and the Respondent’s continuing view of this towards Mr Pamment, and had an influence in Mr Congdon’s decision to dismiss. 80.13. Mr Lee’s appeal reasons did not engage with any of the above.[81]This decision must be read as a whole and this summary is not intended to be comprehensive.
Remedy
[82]I consider firstly the Respondent’s assertion that there should be a Polkey21 reduction. I do not consider the procedure itself unfair: suspension was not inappropriate, and it did not become so because the wrong person suspended him. The investigation was not improper (though it failed to identify that Mr Pamment did not drive at work, and did not investigate whether cannabis can be prescribed for pain relief). Mr Congdon and Mr Lee were appropriate people to take the meetings. A telephone disciplinary hearing was far from ideal, but understandable on the date it took place.[83]It follows that I do not find that there should be any increase for failure to follow the ACAS code. 19 Page 80 20 Page 66-69 21 See paragraph 13[84]The implementation of the procedure was not fair, in that Ms Bailey had an input to it after the hearing and before the decision. It was not unfair for Ms Bailey to provide guidance as to how to run a meeting. It was unfair for her to have Mr Congdon’s ear given the background of September 2019 which was still relevant to the Respondent (see grounds of resistance). That goes to overall fairness not to a consideration of a Polkey reduction[85]I do not find that there should be any Polkey reduction in any award.[86]The Respondent seeks a reduction for contributory conduct. Mr Pamment accepted that he had taken cannabis and that this was an illegal drug and that it showed in his system at levels that the test showed were high. A simple response is that this should result in a substantial or total reduction in compensation on the basis that he brought it on himself by taking an illegal drug.[87]After considerable thought I conclude this would be oversimplistic. Given the analysis above, I do not consider that any reduction for contribution is warranted. The Respondent’s own position means that the presence of the drug itself would have been uneventful if (as they thought it could be) it was prescribed. One is left with the fact that it was an illegal drug only. But that is not something that leads to dismissal if the Respondent’s own policies are applied in suitable cases.[88]Nor does the evidence subsequently obtained by the Respondent as to levels of cannabis help, as the causation of the dismissal can only be by reason of things known at the time. They were right that it was a high level, but all they knew about it was that it was high, but that it had no discernible effect on the work performance of Mr Pamment.[89]I decide that there is no reduction by reason of contribution.[90]There will now be a remedy hearing. Mr Pamment seeks reinstatement or reengagement. The Respondent should prepare accordingly. I observe that I saw nothing in the evidence that would preclude such an order, as nothing in it indicated any performance issue, any likelihood that Mr Pamment would continue to take cannabis (or had done so after 11 March 2020), or that there was any damage to any working relationship. Doubtless Ms Bailey is professional enough to engage with Mr Pamment if needed, and there are others in the human resources team in any event.
Remedy
[1]The Respondent is ordered to reinstate the Claimant on or before 01 June 2021.[2]The Respondent is ordered to pay to the Claimant back pay calculated on the basis of the agreed facts: that the Claimant was paid £496 weekly, gross) including bonus (which was net pay of £390 weekly). There are agreed to be 55 weeks between the dismissal and the date of this hearing. There are a further 5 weeks before 01 June 2021, making 60 weeks’ pay in all.[3]The back pay is to be 2% more than £496.00 from the date a company wide pay increase was effected.[4]The pay the Claimant is to receive from that date is to be at the rate of £499.80 weekly (that being 2% more than £490).[5]The Respondent is ordered to pay 6% of that gross sum into the Claimant’s pension fund, and to restore him to the pension scheme.[6]The Respondent may deduct from that sum the total amount received by the Claimant in benefits and any earnings of the Claimant before 01 June 2020.
The law
[7]An order for reinstatement is sought by the Claimant, and so I consider that first. S114 states: 114 Order for reinstatement.(1) An order for reinstatement is an order that the employer shall treat the complainant in all respects as if he had not been dismissed.(2) On making an order for reinstatement the tribunal shall specify— (a) any amount payable by the employer in respect of any benefit which the complainant might reasonably be expected to have had but for the dismissal (including arrears of pay) for the period between the date of termination of employment and the date of reinstatement, (b) any rights and privileges (including seniority and pension rights) which must be restored to the employee, and (c) the date by which the order must be complied with.(3) If the complainant would have benefited from an improvement in his terms and conditions of employment had he not been dismissed, an order for reinstatement shall require him to be treated as if he had benefited from that improvement from the date on which he would have done so but for being dismissed.(4) In calculating for the purposes of subsection (2)(a) any amount payable by the employer, the tribunal shall take into account, so as to reduce the employer’s liability, any sums received by the complainant in respect of the period between the date of termination of employment and the date of reinstatement by way of— (a) wages in lieu of notice or ex gratia payments paid by the employer, or (b) remuneration paid in respect of employment with another employer, and such other benefits as the tribunal thinks appropriate in the circumstances.[8]If I decide that reinstatement is not possible, I next consider re-engagement, under S115: 115 Order for re-engagement.(1) An order for re-engagement is an order, on such terms as the tribunal may decide, that the complainant be engaged by the employer, or by a successor of the employer or by an associated employer, in employment comparable to that from which he was dismissed or other suitable employment.(2) On making an order for re-engagement the tribunal shall specify the terms on which re-engagement is to take place, including— (a) the identity of the employer, (b) the nature of the employment, (c) the remuneration for the employment, (d) any amount payable by the employer in respect of any benefit which the complainant might reasonably be expected to have had but for the dismissal (including arrears of pay) for the period between the date of termination of employment and the date of re-engagement, (e) any rights and privileges (including seniority and pension rights) which must be restored to the employee, and (f) the date by which the order must be complied with.(3) In calculating for the purposes of subsection (2)(d) any amount payable by the employer, the tribunal shall take into account, so as to reduce the employer’s liability, any sums received by the complainant in respect of the period between the date of termination of employment and the date of re-engagement by way of— (a) wages in lieu of notice or ex gratia payments paid by the employer, or (b) remuneration paid in respect of employment with another employer, and such other benefits as the tribunal thinks appropriate in the circumstances.[9]The Employment Rights Act 1996 sets out how the discretion as to remedy is to be exercised, at S116: 116 Choice of order and its terms.(1) In exercising its discretion under section 113 the tribunal shall first consider whether to make an order for reinstatement and in so doing shall take into account— (a) whether the complainant wishes to be reinstated, (b) whether it is practicable for the employer to comply with an order for reinstatement, and (c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his reinstatement.(2) If the tribunal decides not to make an order for reinstatement it shall then consider whether to make an order for re-engagement and, if so, on what terms.(3) In so doing the tribunal shall take into account— (a) any wish expressed by the complainant as to the nature of the order to be made, (b) whether it is practicable for the employer (or a successor or an associated employer) to comply with an order for re-engagement, and (c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his re-engagement and (if so) on what terms.(4) Except in a case where the tribunal takes into account contributory fault under subsection (3)(c) it shall, if it orders re-engagement, do so on terms which are, so far as is reasonably practicable, as favourable as an order for reinstatement.(5) Where in any case an employer has engaged a permanent replacement for a dismissed employee, the tribunal shall not take that fact into account in determining, for the purposes of subsection (1)(b) or (3)(b), whether it is practicable to comply with an order for reinstatement or re-engagement.(6) Subsection (5) does not apply where the employer shows— (a) that it was not practicable for him to arrange for the dismissed employee’s work to be done without engaging a permanent replacement, or (b) that— (i) he engaged the replacement after the lapse of a reasonable period, without having heard from the dismissed employee that he wished to be reinstated or re-engaged, and (ii) when the employer engaged the replacement it was no longer reasonable for him to arrange for the dismissed employee’s work to be done except by a permanent replacement.[10]S117 sets out the process to be followed if I decide upon a reinstatement order: 117 Enforcement of order and compensation.(1) An employment tribunal shall make an award of compensation, to be paid by the employer to the employee, if— (a) an order under section 113 is made and the complainant is reinstated or reengaged, but (b) the terms of the order are not fully complied with.(2) Subject to section 124 . . ., the amount of the compensation shall be such as the tribunal thinks fit having regard to the loss sustained by the complainant in consequence of the failure to comply fully with the terms of the order. (2A) There shall be deducted from any award under subsection (1) the amount of any award made under section 112(5) at the time of the order under section 113.(3) Subject to subsections (1) and (2) . . ., if an order under section 113 is made but the complainant is not reinstated or re-engaged in accordance with the order, the tribunal shall make— (a) an award of compensation for unfair dismissal (calculated in accordance with sections 118 to 126), and (b) except where this paragraph does not apply, an additional award of compensation of an amount not less than twenty-six nor more than fifty-two weeks’ pay, to be paid by the employer to the employee.(4) Subsection (3)(b) does not apply where— (a) the employer satisfies the tribunal that it was not practicable to comply with the order, . . . (b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (7) Where in any case an employer has engaged a permanent replacement for a dismissed employee, the tribunal shall not take that fact into account in determining for the purposes of subsection (4)(a) whether it was practicable to comply with the order for reinstatement or re-engagement unless the employer shows that it was not practicable for him to arrange for the dismissed employee’s work to be done without engaging a permanent replacement. (8) Where in any case an employment tribunal finds that the complainant has unreasonably prevented an order under section 113 from being complied with, in making an award of compensation for unfair dismissal . . . it shall take that conduct into account as a failure on the part of the complainant to mitigate his loss.[11]McBride v Scottish Police Authority (Scotland) UKSC 27 at paragraph 37: “37. At the stage when it is considering whether to make a reinstatement order, the tribunal's judgment on the practicability of the employer's compliance with the order is only a provisional determination. It is a prospective assessment of the practicability of compliance, and not a conclusive determination of practicability. This follows from the structure of the statutory scheme, which recognises that the employer may not comply with the order. In that event, section 117 provides for an award of compensation, and also the making of an additional award of compensation, unless the employer satisfies the tribunal that it was not practicable to comply with the order. Practicability of compliance is thus assessed at two separate stages - a provisional determination at the first stage and a conclusive determination, with the burden on the employer, at the second: Timex Corpn v Thomson [1981] IRLR 522, 523-524 per BrowneWilkinson J and Port of London Authority v Payne [1994] ICR 555, 569 per Neill LJ.”[12]In British Airways Plc v Valencia (Unfair Dismissal : Reinstatement or reengagement) [2014] UKEAT 0056_14_2606 there is some guidance as to the way the decision whether to exercise the discretion to make such an order should be approached, and it refers with approval to Oasis Community Learning v Wolff (Unfair Dismissal : Reinstatement/re-engagement) [2013] UKEAT 0364_12_1705. These relate mainly to contributary conduct and relationship difficulties caused by the claimant in those cases. Indeed, at para 44 of Oasis is the observation that every case depends on its own facts. Approach[13]I decide that S116(1)(a) and (c) are met: the Claimant has always wanted to be reinstated (he ticked that box in his ET1). I decided that there would be no reduction in compensation by reason of the Claimant’s conduct (paragraphs 86-89 of the judgment). The words of S116 are different, but in considering the conduct of the Claimant I decide it would be just to order reinstatement, for the same reasons as are in the liability judgment.[14]There has been no permanent replacement for the Claimant. Agency staff are used, and so S116(6) does not apply.[15]Therefore, I must decide whether such an order is practicable (S116(1)(b)). This is a provisional determination, as the Respondent may decide not to comply with such an order, and then has the opportunity to show that it was not reasonably practicable to comply with it (S117(4)(a)).[16]Nevertheless, at this stage, if I am satisfied, as set out in S116(1)(b) on the basis of the evidence before me at this hearing I make the order. If it is not complied with then I award compensation, as if such a reinstatement order had not been made. I must then also order the Respondent to pay further compensation of not less than 26, nor more that 52, weeks’ pay (S117(3)(b)), unless the Respondent shows that it was not reasonably practicable to comply with the order to reinstate the Claimant (S117(4)(a). The Claimant’s case[17]The Claimant’s case is: 17.1. He had not fallen out with any of his colleagues, and was in touch with some of them still. 17.2. He had only really had this one job, and he was fully expecting to stay with the Respondent until he retired. 17.3. He had not taken cannabis since the test taken at work. 17.4. He was entirely happy to be tested as often and whenever the Respondent wished, in whatever way they wanted. 17.5. There had never been any question about the way he acted at work, either behaviourally, or in the quality or competence of his work. 17.6. He had been apologetic and remorseful throughout. 17.7. He had been fully cooperative. 17.8. He had not fallen out with management, and in any event he did not have much face to face contact with management. 17.9. He has not been replaced, and an agency worker makes up the team instead. 17.10. Marc Congdon, who dismissed the Claimant, only recently joined the Respondent, and was not with the Respondent at the time he was tested, so there was no personality difficulty there. 17.11. While the Claimant was understandably upset at his dismissal, there was no outburst such as could lead to it being impracticable for him, in personal terms, to work with management in the future. 17.12. The Claimant had not hurt anyone, and his performance at work had not caused any concern. There was no reason to think that he would not work well, as he had for the 10 years he had worked there. 17.13. It was irrational for the Respondent to say that they had lost trust in the Claimant, when he had given a clear (and unchallenged) explanation of pain relief as the reason for taking cannabis at night. 17.14. This was not hedonistic drug use, and he never took it at work. 17.15. The levels of opiate in his system were large, but of no concern to the Respondent, so it was the illegality, not the effect of the drug that was concerning to them. There was no reason for them to doubt that he would do this again, particularly as his prescribed pain relief was now effective. 17.16. The Respondent’s own policies were that people with substance abuse problems were, where possible, to be helped. It was not a sound argument that the Claimant should be in a worse position because he was not addicted than if he was. The cause of taking the drug was pain, not addiction, but that was no reason why he should face dismissal and not be helped, which was highly supportive of reinstatement. The Respondent’s case[18]The Respondent’s opposition to an order for reinstatement is: 18.1. This was an illegal drug in high concentrations. To permit the Claimant to remain an employee would send entirely the wrong message to others: that drug use was not a zero tolerance matter, when it was. 18.2. This was an industry which was high risk – only fishing/agriculture was more dangerous. The Respondent regarded all roles as safety critical. It was a matter of luck that the Claimant had not caused injury to the public, colleagues or himself. 18.3. The liability judgment had been in error as to the level of cannabis in his system, and looked at objectively, it was not right to allow someone with such a high level of cannabis in his system to return to work. 18.4. While the Claimant said he could be trusted in future, that trust was gone, because he had taken cannabis for some 3 months without telling them. 18.5. That he had been co-operative with the test was neither here nor there, as he really had no choice but to take it. 18.6. The tests were random and carried out by an external provider, at the various locations the company had around the country. It was onerous to expect them to carry out frequent tests on one individual. 18.7. The trust issue was about everything, not just about drugs. He had concealed his drug use. They did not know what else he would not tell them in future. 18.8. It would make it difficult to enforce any policy. Most disciplinary issues were safety related, and this was a safety related issue. 18.9. The role did require driving on occasion, and he was way over the driving limit (which was nearly zero), and involved heavy machinery. The consequence of having this level in his system was that it was wrong in principle for him to return. 18.10. If he returned to work and someone was injured those involved in letting him back would feel a heavy weight of responsibility. 18.11. He had been a Team Leader, and so in a position of responsibility and trust, which he had broken, and the consequence of that was that he should not return. 18.12. All 3 of the Respondent’s witnesses stressed concern at safety should the Claimant return.
Conclusions
[19]The Respondents provided evidence from Kevin Bell, contract director for the East London Waste Authority Contract (the division where the Claimant worked), Iain George, Senior Operations Manager, to whom the Claimant reported) and from Nicola Howe of human resources.[20]In Mr Bell’s oral evidence he was asked about the prescription drugs in the Claimant’s system. His very firm view was that the Claimant had failed to tell them about the prescription medication, and this was not open and honest and was a breach of trust. This is highly irrational, as there was no return to work interview, and no reason for the Claimant to say so, and this was in flat contradiction to the evidence at the liability hearing, which was that it was solely the illegal cannabis use that was the concern.[21]The Respondents were of the view that there could have been a problem with interaction of cannabis and opiates to cause a safety issue. They produced no evidence that this is the case.[22]The Respondents do not have a logical reason why it is that the humane approach taken in regard to alcoholism – a chance to resolve the issue – does not apply to the Claimant. It cannot be illegality as the policy applies to all addictions, including to illegal drugs.[23]The safety issue is plainly important in the waste industry. It is in every workplace but is worthy of great focus in industries more intrinsically dangerous such as waste management. However, the concerns of the witnesses were not logically based. Mr George referred to 1,000 litre bins at schools and danger to pupils. It is not remotely likely that school children will be able to get anywhere near waste removal operations. Such bins are always in separated securely fenced compounds, and it is inconceivable that either the schools or the Respondent would permit the removal of waste containers with pupils anywhere near them.[24]Mr Bell referred to the possibility of waste bags igniting immediately they hit the shredders. The Claimant has never worked with shredders and his job does not involve going anywhere near them. He referred to needle injuries and toxic contamination. The Claimant carried out his role for many years without incident, and there was absolutely no concern about his work after he returned from his long term absence. The dismissal was about illegality and not prompted by safety concerns. The fact that the Claimant was allowed to work with very high levels of opiates in his system and that (at the time of dismissal) this was said not to be of concern belies the safety objections to his return.[25]It would be of concern if the Claimant were again to take drugs, but he offers guarantees that he would not, in the form of testing. The Respondent objects that regular testing can be ineffective as drug use can be immediately after the test to have dissipated before the next. It says that frequent random testing is too onerous on them.[26]The random testing is of urine. The Respondent agreed that if someone fell within the substance abuse policy there would be random testing, so there is no difficulty with frequent random testing of an individual. The Respondent did not consider the use of hair testing, which will reveal cannabis use within the last 90 days (I have judicial knowledge of this). I asked the Respondent about this, and it was not something they had considered.[27]The Respondent’s witnesses accepted that their objections were primarily backward and not forward looking, save that they all said that they had lost trust in the Claimant being truthful about anything.[28]It is almost always the case that an employer found to have unfairly dismissed an employee will not want to reinstate that employee. If that objection was reason not to make an order for reinstatement then such orders would never be made.[29]The Respondent says that its policy on drugs will be undermined by reinstatement. Of the 7 people who have tested positive all have been dismissed if they had not resigned. That one individual, after a full Employment Tribunal hearing and a very long delay, was able to be reinstated does not undermine the policy. No one could view such an outcome in this case as being an open door to escaping dismissal for drug abuse.[30]The Claimant has not been permanently replaced. The agency worker can be released.[31]The Respondent says that it now operates without a team leader, as the agency worker is not a team leader. I do not see that as an obstacle to reinstatement.[32]In all, I conclude that the objections put forward are all manifestations of reluctance to have the Claimant back, based on the use of illegal drugs in the past, and not a genuine loss of trust in him. There is, in my judgment at this point, no reason why it is not practical to reinstate the Claimant.[33]Accordingly, I make an order for reinstatement. I have not been able to provide in the order one particular, which is the date of the 2% pay increase, which was not known to Ms Howe at the remedy hearing. It will not be a contentious date, and will be easily determinable.[34]It may be that the agency worker has a minimum period of notice, and so I give an implementation date of 01 June 2021.[35]It must be that the Claimant should not be better off by being reinstated, and so he will have to account in full to the Respondent as to the amount of benefits he received and for any earnings before 01 June 2021, which are deductible from the back pay. It does not appear that the Recoupment Regulations apply to money paid under a reinstatement order. Compensation[36]Had I not made a reinstatement order, I would have had to assess compensation. Should the Respondent fail to comply with the reinstatement order I will need to assess compensation in any event.[37]Using Bath Publishing Ltd’s employmentclaimstoolkit program, I arrive at the following: IN THE EMPLOYMENT TRIBUNALS CASE NO: 3201672/2020 BETWEEN Carl Pamment AND Renewi Ltd CLAIMANT'S SCHEDULE OF LOSS 1. Details Date of birth of claimant 19/08/1988 Date started employment 01/10/2010 Effective Date of Termination 01/04/2020 Period of continuous service 9 (years) Age at Effective Date of 31 Termination Date new equivalent job started 01/12/2021 or expected to start Remedy hearing date 19/04/2021 Date by which employer should 01/12/2021 no longer be liable Contractual notice period 9 (weeks) Statutory notice period (weeks) 9 Net weekly pay at EDT 390.00 Gross weekly pay at EDT 496.00 Gross annual pay at EDT 25,792.00 2. Basic award Basic award Number of 4,464.00 qualifying weeks (9) x Gross weekly pay (496.00) Less amount for unreasonable 0.00 refusal to be reinstated Less contributory fault (basic 0.00 award) @ 0% Less redundancy pay already 0.00 awarded Total basic award 4,464.00 3. Damages for wrongful dismissal Loss of earnings Damages 3,510.00 period (9) x Net weekly pay (390.00) Plus failure by employer to follow .00 statutory procedures @ 0% Less failure by employee to 0.00 follow statutory procedures @ 0% Less accelerated payment 0.00 (wrongful) @ 0% Plus interest (damages) @ 0% 0.00 Total damages 3,510.00 4. Compensatory award (immediate loss) Loss of net earnings Number of 17,823.00 weeks (45.7) x Net weekly pay (390.00) Plus loss of statutory rights 500.00 Plus loss of commission and/or 0.00 bonus Less payment in lieu 0.00 Less ex-gratia payment 0.00 Less non-recoupable benefits 0.00 Less early payment of 0.00 compensation Plus loss of pension 1,627.87 Pension loss 1,627.87 Pension loss from EDT 1,627.87 (01/04/2020) to tribunal hearing (19/04/2021) Weeks (54.7) x Gross weekly pensionable pay (496.00) x % contributions from employer (6) x % for contingencies (0) Total compensation 19,950.87 (immediate loss) 5. Compensatory award (future loss) Loss of future earnings Number 12,597.00 of weeks (32.3) x Net Weekly pay (390.00) Plus loss of pension 1,041.60 Number of weeks (35) x 1,041.60 Gross weekly pensionable pay (496.00) x % contributed by employer (6) x % deduction for contingencies (0) Total compensation (future 13,638.60 loss) 6. Adjustments to total compensatory award Less Polkey deduction @ 0% 0.00 Plus failure by employer to follow 0.00 statutory procedures @ 0% Less failure by employee to 0.00 follow statutory procedures @ 0% Less deduction for making a 0.00 protected disclosure in bad faith @ 0% Less contributory fault 0.00 (compensation award) @ 0% Accelerated payment @ 0% 0.00 Compensatory award before 33,589.47 adjustments Total adjustments to the 0.00 compensatory award Compensatory award after 33,589.47 adjustments 7. Summary totals Basic award 4,464.00 Wrongful dismissal 3,510.00 Compensation award including 33,589.47 statutory rights Total 41,563.47 8. Grossing up Tax free allowance (£30,000 - 30,000.00 any redundancy pay) Basic + additional awards 4,464.00 Balance of tax free allowance 25,536.00 Compensatory award + wrongful 37,099.47 dismissal Figure to be grossed up 11,563.47 GROSSED UP TOTAL 49,272.45 AFTER COMPENSATION CAP £33,766.00 OF £25,792.00 (GROSS ANNUAL PAY)[38]The Recoupment Regulations apply, and that program gives the following detail: IN THE EMPLOYMENT TRIBUNALS CASE NO: 3201672/2020 BETWEEN CARL PAMMENT AND RENEWI LTD RECOUPMENT Recoupment Prescribed period 04/06/2020 to 19/04/2021 Compensation cap applied Total award £33,766.00 Prescribed element £12,213.95 Balance £21,552.05 Compensation cap not applied Total award £49,272.45 Prescribed element £17,823.00 Balance £31,449.45[39]I considered that the Claimant had made every reasonable effort to find employment in this most extraordinary of times. I considered that he would need a further period after restrictions are due to end on 21 June 2021. The Claimant is a person without qualifications, who happened into a job he liked and was good at. It is hard to see him getting another such job easily, particularly given the reason for dismissal and his history of back problems, when his work is of a physical nature.[40]Given the cap on awards for unfair dismissal, these matters are of limited relevance: whichever way the calculation is made, the loss will exceed the cap of one year’s pay. The total award would, as above, have been £33,766.00.[41]If either party considers that there is any error in principle (there is unlikely to be an error of arithmetic, given the use of a reputable program to calculate it) I invite that party to apply for a reconsideration of the calculation (or agree it themselves, for it is hypothetical at this stage).