M Walker v Rotable Repairs Ltd: 6005079/2024
JUDGMENT
The judgment of the Tribunal is that:- The Claimant was unfairly dismissed. By way of remedy the claim is entitled to recover half of the basic award, given a 50% reduction to the basic award under Section 122(2) Employment Rights Act 1996 for the Claimant’s own conduct. This is calculated as £653 x 3 divided by 2, namely £964.50. She is not entitled to recover any compensatory award.REASONS
[1]This is an unfair dismissal claim brought by Mr Mark Walker against his former employers, Rotable Repairs Limited. He was employed by the Respondent from 7 February 2022 until 13 February 2024. At that point he was summarily dismissed for failing a random drug test he had been asked to undergo.[2]I have been provided with an agreed 292-page long bundle of documents to which reference has been made in the course of the evidence. In addition, I was provided with eight further pages of documents, not included in the bundle, relating to other employees where there was evidence of illegal drug use. These pages related to the Claimant’s argument that he had been treated more harshly than other employees. It was important that this information was in evidence, so that this issue could be properly determined. The Claimant had sufficient time on the morning of the hearing to review these documents, to ask questions of the Respondent’s witnesses, and to give evidence himself about the extent to which these cases were truly analogous.[3]I have only read those pages to which I have been directed. I have heard evidence from the following witnesses:a. Denise Child, HR Managerb. Alan French, Operations Directorc. Bryan Croft, Managing Director[4]I made it clear at the start of the hearing that in deciding whether this was an unfair dismissal, I was not considering whether the Claimant was guilty of gross misconduct. Rather I was reviewing the decision to dismiss the Claimant to assess whether it was an unfair dismissal. As a result, my findings of fact are limited to those that are necessary for the unfair dismissal decision. Legal principles - unfair dismissal[5]Where the Respondent’s reason for dismissal is conduct, that is a potentially fair reason for the dismissal. The role of the Tribunal is to assess whether the dismissal of the Claimant was fair. It will be a fair dismissal if the Respondent genuinely believed in the Claimant’s guilt, and if that belief was a reasonable one reached after a reasonable investigation (British Homes Stores v Burchill [1980] ICR 380). Finally, the gravity of the misconduct as reasonably believed by the Respondent must be sufficient such that it was reasonable to dismiss the Claimant for this misconduct. In assessing both the reasonableness of the investigation and of the decision to dismiss, it is not the role of the Tribunal to decide whether it considers that the investigation was sufficient or whether the misconduct was sufficiently grave to merit dismissal. Rather it must consider whether the investigation fell within the band of reasonable investigations and whether the outcome fell within the band of reasonable outcomes open to a reasonable employer. In other words, the dismissal will be fair if a reasonable employer could have dismissed for the misconduct, even if another reasonable employer could have decided that the conduct was insufficiently serious to merit dismissal.[6]The procedure that the Respondent adopts in deciding whether to dismiss the Claimant must be a reasonable procedure, namely a procedure which falls within the band of reasonable procedures open to a reasonable employer. In assessing this a Tribunal must have regard to the ACAS Code of Practice on Disciplinary and Grievance Procedures. Section 207(2) Trade Union and Labour Relations (Consolidation) Act 1992 provides the Code is admissible and that any provision of the Code which appears to the Tribunal to be relevant shall be taken into account in determining any question arising in the proceedings.[7]The Code states at paragraph 9 that “it would normally be appropriate to provide copies of any written evidence, which may include any witness statements, with the notification. The accompanying Guide states that “Copies of any relevant papers and witness statements should be made available to the employee in advance”.[8]If a dismissal is procedurally unfair, then the Tribunal should go on and consider the percentage chance that the disciplinary process would have had the same outcome in any event. This is sometimes referred to as the Polkey issue, after the discussion of this point in the House of Lords case of Polkey v AE Dayton Services Limited [1987] ICR 142. Where the outcome of the process would inevitably have been the same in any event, such that the chance of this occurring is 100%, then the contributory award is reduced to nil. This is because there is no chance that the unfair dismissal has caused any financial loss.[9]Further, in assessing the appropriate basic award “if the Tribunal considers that any conduct of the complainant before the dismissal… was such that it would be just and equitable to reduce or further reduce the amount of the basic award to such extent as it considers just and equitable having regard to that finding” (Section 122(2) Employment Rights Act 1996).[10]In addition, in assessing the appropriate contributory award, the Tribunal must consider whether the dismissal was to any extent caused or contributed to by any action of the complainant and shall reduce the amount of the compensatory award by such proportion as it considers just and equitable (Section 123(6) Employment Rights Act 1996).[11]If there has been any failure to comply with the ACAS Code of Conduct, the Tribunal has a discretion as to whether there should be an adjustment of up to 25% in relation to the contributory award. This potential adjustment does not apply to the basic award. Factual findings[12]Mr Walker was employed by Rotable Repairs as IT Officer. Rotable Repairs is engaged in manufacturing and repairing parts for the aviation industry. This is a highly regulated industry where safety is of paramount importance. As a result, the Respondent has a strict approach to the use of alcohol or drugs by all its members of staff. No distinction is drawn between staff who are working on the aviation parts and those that have a supporting function. It was set out in a Drug and Alcohol Policy which was updated in 2023. The Claimant signed a document to confirm that he had read and understood the policy. The policy provided that the company reserved the right to carry out random drug tests; that a positive test would be regarded as gross misconduct which may lead to dismissal; but that if an employee self-referred to the Respondent prior to a breach of the policy to seek help with a drug or alcohol dependency problem, the Company would help the employee with appropriate support to undertake an approved course of treatment.[13]The application of this policy can be seen in the case of employee A, who selfreferred to report that he had taken recreational drugs, was not a regular drug user and did not have a drug addiction. He was offered a period of three weeks paid leave to seek medical advice and counselling. He was told that prior to any return to work he would be required to undertake a drugs screening test and provide a negative result. Employees B, C and D, who had each tested positive for illegal drugs without self-referral before the drug test, were summarily dismissed for gross misconduct. In relation to employee B, the illegal drugs were cocaine and benzoylecgonine. In relation to employees C and D the illegal drugs were cannabis.[14]The Claimant experienced a deterioration in his mental health in around November 2023. This was prompted by difficulties that his mother was experiencing with her health. He visited his GP on 2 January 2024 and had an informal meeting with Bryan Croft, the Respondent’s Managing Director on 3 January 2024. This was to discuss that it had been noted that the Claimant had been noted to have left work without permission during the middle of the working day over recent weeks. At that meeting he disclosed that he had been experiencing difficulties in sleeping and was suffering from anxiety. He said that he was on medication for his anxiety. He did not say that he was suffering from depression. He did not disclose that he had been using an illegal drug. He did not ask for any time off work.[15]On Friday 26 January 2024, the Claimant and other employees (including employee C) were asked to undergo a random drugs test. It was administered by an external company. On the consent form the Claimant disclosed that he was on the medication he had been prescribed by his GP. He did not disclose that he had been using any illegal drugs. The result of the Claimant’s test which was obtained at the point of testing was that whilst the sample was negative for all other substances, it was positive for cocaine. The sample was sent off for analysis. The Claimant was told that he would be suspended pending a disciplinary investigation.[16]On Monday 29 January 2024, there was a further meeting between the Claimant and Denise Child. At the meeting, the Claimant was very distressed. He was given the number for the Samaritans and spent an hour speaking to them on the telephone. He had to be driven home with Ms Child.[17]After the end of the working day on 5 February 2024, the Respondent received the outcome of the drug test. It was in an amended report provided by the testing company. The company had not provided the original report. It noted that the value of Benzoylecgonine (Cocaine metabolite) in his urine was substantially above trace levels which are 75ng/ML. It was in excess of 1200 ng/ML.[18]On 12 February 2024 there was email contact between Ms Child and the Claimant to invite him to a disciplinary meeting. This had been proposed to take place on 14 February 2024 but this was not a date on which the Claimant’s proposed companion was able to attend. As a result, with the Claimant’s agreement, it was scheduled to take place on 13 February 2024. He accepted that he had sufficient time to prepare for the hearing. There is a factual dispute as to whether the Claimant was sent the evidence with an email of 12 February 2024. I find on the balance of probabilities that he was sent this evidence. At this point he was not in a stable emotional state. He had been in regular contact with the Samaritans, who were ringing him every day. It is likely that, for whatever reason, he did not open and analyse the attachments to the email. These were the letter inviting him to the disciplinary meeting, the disciplinary policy, the drug and alcohol policy and the test results from the independent expert.[19]The disciplinary hearing was conducted by Mr French, the Head of Operations. In advance of the hearing, he had contacted the independent experts for further information about the test results. The focus of his questioning had been on the significance of a finding of cocaine metabolite. He had spoken to them on the telephone but had not made a note of what he had been told. He had also carried out his own independent internet research. He also took this into account. It is not clear what he discovered on the internet, but he did not provide it to the Claimant in advance or at the disciplinary hearing.[20]At the start of the hearing the Claimant said that he had got an email about the hearing but that “he could not find a copy of the invite letter or the attachments”. He was given a copy of these documents. He was offered the opportunity for the meeting to be adjourned but said he was content for the hearing to continue.[21]When it was put to him that the evidence showed he had been taking drugs, he said that he was not disputing the evidence. He said that he had been in a terrible place and not been sleeping. He said that he had been out for the weekend and he did not remember much. He did not think anything would flag up. He then said that he was on a programme with Stars to help him with alcohol and drugs. The implication of what he was saying was that he may have taken cocaine on the weekend before the test was carried out. He did not say, as he has said in evidence, that the last time he had taken cocaine was over Christmas 2023 – in other words about a month before the drug test.[22]Towards the end of the disciplinary hearing, the Claimant was asked if there was anything he wished to add or discuss. This was his opportunity to provide any mitigation. He said no. Mr French had not been provided with details of the meeting that the Claimant had had with Mr Croft and Ms Child on 3 January 2024.[23]Mr French adjourned the hearing whilst he considered the outcome. After a break of 10 minutes, he told the Claimant he was being summarily dismissed for a breach of the Drugs and Alcohol Policy. Rather unfortunately, he then asked the Claimant if there was anything that he wanted to say in mitigation. I accept his evidence that this was a poor choice of words at that point. He was attempting to show concern for the Claimant’s welfare. He had in fact considered the issue of potential mitigation before making his decision to dismiss.[24]The Claimant appealed the dismissal outcome in a two-page long appeal letter which was lodged the following day. He had four grounds of appeal. Each of those was then discussed in the appeal hearing which took place on 14 March 2024. He had an opportunity to discuss each of the grounds of appeal. At the end of the appeal meeting, he was asked if he wanted to discuss anything further. The Respondent has not chosen to call the appeal officer. I find that this was not a full hearing. Rather it was a meeting to specifically address his particular grounds of appeal, together with an opportunity to raise any further matters at the end of the hearing.[25]The outcome of the appeal was to uphold the original dismissal decision.Conclusions
[26]Considering each of the stages of the Burchill test in turn:a. Mr French had a genuine belief in the Claimant’s guilt.b. This was a reasonable belief on the evidence before him – there was a positive test for cocaine metabolite in the independent report.c. There was a reasonable investigation – in other words, it was within the band of reasonable investigations. The testing had been carried out by an independent drug testing company. There was no basis to challenge the findings of the drug test.d. Dismissal was within the band of reasonable responses. Given the nature of the industry in which the Respondent operated, it was reasonable for the Respondent to have a zero-tolerance approach to drugs and to implement a system of random drug tests. It was reasonable for this policy to apply to all employees. The Claimant had failed a drug test and, whilst he had tested negative for cocaine, he had tested positive for cocaine metabolite. He had implied in what he had said at the disciplinary hearing that he may have taken cocaine on the weekend before the test and attended work in the week thereafter. It was within the band of reasonable responses to dismiss even if the test did not establish current impairment.[27]I do not accept that there were procedural failures in the respects alleged by the Claimant. There was no basis for all reasonable employers to offer him the opportunity to have a B sample tested – I have not been shown any policy requiring this. Whilst a full report from the independent laboratory could have been obtained, it was open to a reasonable employer to rely on the summary report in circumstances where a full report was not being requested by the Claimant. I do not consider that there was a failure of any duty of care during the period from 5 February until 12 February 2024. Although Ms Child was not in contact with the Claimant, Mr Croft was in regular contact with the Claimant. He was also being supported at this point by the Samaritans, which Ms Child knew about and had instigated at the meeting on 29 January 2024. Adequate notice was provided of both the disciplinary hearing and of the appeal hearing.[28]However, I consider that the process that was followed was procedurally unfair in that the Claimant ought to have been provided with the outcome of the conversation that Mr French had with the independent testing facility and the fruits of Mr French’s internet-based research. He was entitled to see and comment on all the evidence that Mr French was taking into account in reaching his dismissal decision. The procedure was outside the band of reasonable procedures that a reasonable employer would have followed.[29]Next, I need to consider whether this unfairness was cured by the appeal. I have carefully considered the points made by the Respondent to this effect. However, I do not consider that this would cure the procedural unfairness. First, the appeal was not a rehearing. It was a consideration of the specific points of appeal. Secondly, whilst the Claimant was given the opportunity at the end of the appeal to raise any further points, he could not refer to matters of which he was ignorant. It was only during this Tribunal hearing that the Claimant learnt for the first time about the further evidence that Mr French had gathered. He could not have challenged this by way of appeal.Remedy
[30]I need to assess the percentage chance that the Claimant would still have been dismissed when he was if the additional evidence reviewed by Mr French had been fairly drawn to the Claimant’s attention. If it had been included in the information that he had been sent before the hearing, then it would not have delayed the hearing. If it had been referred to at the start of the hearing, then it would have led to the hearing proceeding, given what happened on the morning of the hearing. As a result, it would not have delayed the conclusion of the hearing and the date on which the outcome was announced. It would not have impacted on the outcome of the dismissal. The Claimant would still have been dismissed in any event, given the Respondent’s zero tolerance approach to the use of drugs, and the lack of particular mitigation in the Claimant’s case. There is no chance that any further comments on this additional evidence from the Claimant would have persuaded Mr French to reach a different conclusion as to the Claimant’s conduct and the extent of his culpability for that conduct. There is no chance he would have kept his job. It was certain that he still would have been dismissed in any event. As a result, the Claimant has not suffered any financial loss as a result of this procedural unfairness, and therefore is not entitled to any compensatory award.[31]Finally, I need to consider the extent to which the basic award should be reduced under Section 122(2) on the grounds that a reduction would be just and equitable given the Claimant’s conduct. In order to assess this, I need to come to a conclusion, on the balance of probabilities, as to the Claimant’s conduct.[32]On the balance of probabilities, given the positive result of the random drug test, the Claimant had taken cocaine on the weekend before the test was administered. This is the most likely explanation for the outcome of the drug test, recording that cocaine metabolite (Benzoylecgonine) was present. During the appeal meeting, the Claimant is recorded as saying that “I took cocaine at the weekend” [177]. He also accepted in cross examination that this was a possibility that he had taken drugs on the weekend before the test was carried out. I reject the Claimant’s contention that the positive result related to drug taking the previous month, in December 2023.[33]This recent drug use is conduct which I consider makes it just and equitable to reduce the amount of the basic award. In cross-examination, the Claimant accepted that “to some extent” by virtue of taking illicit substances and presenting himself to work he had brought the dismissal outcome on himself.[34]I consider that the appropriate percentage reduction is one of 50%. This reflects the Claimant’s culpability in using cocaine when he did and not self-referring before the date of the random drugs test. However, it also reflects the fact that he was not in a good place psychologically at the time, that he was using the drugs as a form of self-medication and that the drug use was at the weekend rather than during the working week. As a result, he is entitled to half of the basic award.[35]A full basic award would have been £643 x 3 = £1929. This is because the Claimant was entitled to receive the statutory maximum amount for a week’s pay and had three years continuous service. Half of the basic award is therefore £964.50.[36]Section 207A Trade Union and Labour Relations Consolidation Act 1992 does not apply to the calculation of the basic award. As a result, there is no jurisdiction to consider whether to make an upwards adjustment to the basic award for any failure to comply with the ACAS Code of Practice.[37]Therefore, £964.50 is the amount which is payable by the Respondent by way of remedy for the Claimant’s unfair dismissal. RECONSIDERATION JUDGMENT The judgment of the Tribunal is that:- The Claimant’s application dated 10 February 2025 made under Rule 69 Employment Tribunal Procedure Rules 2024 for the Judgment to be reconsidered is refused. There is no reasonable prospect of the original decision being varied or revoked.Remedy
[1]This is the second application made by the Claimant for reconsideration of the outcome of the Final Hearing, which was given orally at the conclusion of the Final Hearing on 21 November 2024 and set out in a Judgment and Written Reasons sent to the parties on 29 January 2025. The first reconsideration application was refused for reasons set out in a Reconsideration Judgment previously to the parties.[2]On an application for reconsideration, the Tribunal must consider whether there is any reasonable prospect of the original decision being varied or revoked. I consider that there is no reasonable prospect of the original decision being varied or revoked for the following reasons, by reference to the points raised by the Claimant in his application dated 10 February 2025:a. Although the Claimant had requested reinstatement in his ET1, there was no realistic prospect of the Claimant being awarded reinstatement by way of remedy. The Claimant’s unfair dismissal claim had succeeded because the Claimant ought to have been provided with the outcome of a conversation that Mr French had with the independent testing facility and the fruits of Mr French’s internet-based research. I found that the Claimant was entitled to see and comment on all the evidence that Mr French was taking into account in reaching his dismissal decision. However, I went on to consider that even if this extra information had been included in the evidence he was sent before the disciplinary hearing, it would not have delayed the outcome of the disciplinary hearing. The Claimant would certainly have been fairly dismissed in any event. This is because I found that the Respondent genuinely believed that the Claimant was guilty of misconduct, this was a reasonable belief and it was reached after a reasonable investigation. Dismissal was within the band of reasonable responses. As a result, taking into account the matters set out in Section 116 Employment Rights Act 1996, and in particular the fact that the Claimant had wholly caused his dismissal through his own gross misconduct, there was no prospect whatever that it would be just and equitable to order reinstatement.b. There is no reasonable prospect of the Claimant establishing that I misinterpreted the Drug & Alcohol Policy. Taking the evidence as a whole, it was open to me to conclude that the Respondent was entitled to dismiss him for his drug usage in the light of all the evidence, including the Drug & Alcohol Policy. The evidence of Mr French was that if the Claimant had admitted his cocaine usage by self-referring, a different approach may have been taken rather than dismissing him (paragraph 12 of his witness statement). I made a general finding on this point about self-referral in paragraph 12 of the Written Reasons; and gave examples of the approach taken to others at paragraph 13 of the Written Reasons. The Claimant did not come forward and self-refer and therefore the Respondent operated its standard policy which was to dismiss in the light of the positive drug test. It was in this sense a zero-tolerance policy which applied to drug usage by the Respondent’s employees, as implemented in the case of employees B, C and D, as described at paragraph 13 of the Written Reasons.c. During the Final Hearing, the Claimant did not raise that there was a procedural failing in the specific respect that the disciplinary invitation was sent to his work email address rather than to his personal email address. Rather he made a different point, namely that the disciplinary invite email was not sent on 12 February 2024 but on 14 February 2024. His point about the incorrect email address is raised for the first time as part of the Claimant’s reconsideration application. There is no good reason why the Tribunal should reconsider its decision based on this new matter raised only after the decision has been sent to the parties.d. During the Final Hearing, the Claimant did not argue that he had not been adequately trained in the Drug & Alcohol Policy. This is an attempt to introduce further arguments that were not raised as part of the evidence at the Final Hearing. There is no reasonable prospect that the decision will be varied or set aside for this reason.