Conduct Dismissals – Worker Unfairly Dismissed For Taking Cannabis To Alleviate Back Pain

Should being under the influence of drugs at work always result in dismissal?

No, held an Employment Tribunal in the recent case of Pamment v Renewi UK Services Ltd. Mr Pamment, who tested positive for cannabis in a random drugs test, was found to have been unfairly dismissed by his employer on the basis that his employer failed to take into consideration his health conditions, together with his long and unblemished employment service.

Legal background

Generally speaking, all employees with two or more years’ service have the right not to be unfairly dismissed. In practice, this means that an employer must:

1. Have a fair reason to dismiss;
2. Follow a fair procedure before implementing that dismissal and terminating the contract; and
3. Be able to demonstrate that the decision to dismiss was reasonable in all the circumstances.

There are five fair reasons an employer can rely on when dismissing an employee, one of which is conduct. As a worst case scenario for an employee, where an employer is of the view that an employee’s conduct is sufficiently serious to amount to gross misconduct, it can decide to dismiss without notice or payment in lieu of notice.

Facts of the case

Mr Pamment was a recycling worker who had worked for the Respondent (Renewi UK Services Ltd) for 14 years. He was dismissed from his role on 1st April 2020 following a random drugs test that showed that he was over the legal limit for cannabis, opiates and morphine.

Mr Pamment had suffered with longstanding back problems and subsequent severe back pain. His employer was aware that he had been prescribed with opiates and morphine by his GP to help ease that pain. However, they were not aware that he had also started to take cannabis in December 2019 to assist with the pain he was experiencing.

Mr Pamment’s history of back pain had previously meant that he had missed six months of work. He returned to work on 6th January 2020. Upon his return to work, he should have had a return to work meeting with his line manager but this did not take place as the line manager was not available. This meant that Mr Pamment was not able to inform his employer that he was taking cannabis to help treat his condition.

The random drugs test took place on 11th March 2020 and Mr Pamment was subsequently suspended. Following his suspension, Mr Pamment was invited to attend a disciplinary hearing on 30t March 2020 by Mr Congdon, an Engineering Manager at Renewi UK Services Ltd. Mr Congdon worked at a different site to the one at which Mr Pamment worked.

Following the disciplinary hearing, but, importantly, before a decision was made regarding the outcome of the disciplinary process, Mr Congdon spoke with a member of the HR department who informed him that, historically, all workers who had failed a drugs test had either resigned or been dismissed as a result. During the hearing, the Employment Tribunal found that this conversation with HR had influenced Mr Congdon’s decision to dismiss Mr Pamment.

Mr Pamment was notified that he was being dismissed on grounds of gross misconduct due to him failing the drugs test. The employer’s reasons for dismissing Mr Pamment specifically related to the traces of cannabis showing in his system, and not to the traces of opiates and morphine as they were aware that he had been prescribed both of those medications by his GP. Mr Pamment appealed against the decision but the appeal officer upheld his dismissal on the grounds that he had not informed them that that he was taking cannabis to treat his condition prior to the test and that he was taking the substance without a GP prescription. Renewi UK Services Ltd said that this was in direct contravention of their alcohol, drugs and medicines policy.

Consequently, Mr Pamment brought a claim in the Employment Tribunal against Renewi UK Services for unfair dismissal.

Decision

During the proceedings, the Respondent argued:

• That their reasons for dismissing Mr Pamment were justified as he had been “under the influence” of cannabis whilst working;
• The level of cannabis present in his bloodstream, as shown in the drug test results, was over the legal limit for operating a vehicle; and
• Mr Pamment “did not come into work free from the effects of illegal drugs”, and that this created a health and safety issue.

In opposition, Mr Pamment submitted that:

• His use of cannabis had not impacted his performance and that the employer had not called this into question prior to his dismissal;
• He was a “driver’s mate” and did not operate vehicles whilst he worked;
• His job role meant he posed no health and safety risk; and
• He had an entirely, credible reason for taking the substance and going forward he would have stopped using cannabis and pay to have regular drug tests himself.

The Employment Tribunal ruled in favour of the Claimant, finding that Renewi UK Services Ltd had failed to take into consideration the genuine reasons for Mr Pamment taking cannabis and also his unblemished service. Employment Judge Housego stated:

Adding:

A further hearing will now take place to ascertain what compensation Mr Pamment should be awarded.

Comment

This case illustrates that procedurally, it is crucial that employers follow a disciplinary procedure that complies with the Acas Code on Disciplinary and Grievance Procedures before reaching a decision to dismiss and that they consider all of the circumstances of the case and mitigating factors when contemplating disciplinary decisions, including the employee’s length of service and whether they have an otherwise clean employment record. Here Mr Pamment’s service, track record and explanations substantially mitigated the breach in question.

The case also flags up that that although employers might legitimately introduce drugs testing and policies concerning inappropriate use of alcohol and illegal drugs, these need to be considered carefully and applied on a case by case basis. This is especially the case where an employee is suffering from a condition that has the potential to amount to a disability for the purposes of the Equality Act 2010, where a failure to make reasonable adjustments to a disciplinary procedure could give rise to a discrimination claim.

Getting the process or reason for dismissal wrong can be expensive for an employer. If a claim is successful, the Employment Tribunal have the power to award compensation up to the lessor of a maximum of a year’s gross pay, or £88,519. In addition, the employer has to consider their legal fees in defending that claim and the fact that they may also suffer reputational damage. By taking the time to follow the correct procedures and ensuring the employee is given the opportunity to raise any relevant mitigation and then properly consider that, an employer offers themselves the best chance of not being challenged for unfair dismissal.