Worker Dismissed By Employer For Taking Cannabis To Assist With Back Pain Was Unfairly Dismissed

An Employment Tribunal (ET) has ruled that an employee, who tested positive for cannabis in a random drugs test, was unfairly dismissed by his employer as they did not take into consideration his health conditions, along with his long and unblemished employment service.

Mr C Pamment v Renewi UK Services Ltd: 3201672/2020

The Claimant (Mr Pamment) was a recycling worker who had worked for the Respondent (Renewi UK Services Ltd) for 14 years.

On 1^st April 2020, Mr Pamment was dismissed from his role with the company, as a drugs test had showed that he was over the legal limit for cannabis, opiates and morphine.

The employers’ reasons for dismissing Mr Pamment did not relate to the traces of opiates and morphine in the test results, as they were aware that he had been prescribed both medications by his GP to help with his severe back pain. The dismissal related to the traces of cannabis, which the Claimant had started taking 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 and had only returned to the workplace at the start of the year (6^th 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 the Claimant was not able to inform his employer that he was taking cannabis to help treat the discomfort he was experiencing.

The random drugs test took place on 11^th March 2020 and the Claimant was subsequently suspended once Renewi UK Services received the test results. Following the suspension, a disciplinary meeting was arranged for 30^th March 2020 and Mr Pamment was invited to attend by Mr Congdon, an Engineering Manager. Mr Congdon worked at a different site to the one which the Claimant worked at.

Prior to reaching a decision but following the disciplinary meeting with Mr Pamment, Mr Congdon spoke with a member of Renewi UK Services’s HR department, who informed him that all workers, who had failed a drugs test, had either resigned or been dismissed as a result.

Mr Pamment was dismissed by the Respondent for gross misconduct as a direct result of the drugs test. The Claimant appealed against the decision but it was dismissed 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. Both of which breached their alcohol, drugs and medicines policy.

Consequently, Mr Pamment brought an ET claim against Renewi UK Services for unfair dismissal.

Tribunal proceedings

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
• The Claimant “did not come into work free from the effects of illegal drugs”, and that this created a health and safety issue.

However, Mr Pamment argued 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
• Finally, he had an entirely, credible reason for taking the substance and he would have paid to have regular drug tests himself.

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

Adding:

A further hearing to set to take place to ascertain what damages Mr Pamment will receive.

Comment

This case illustrates the importance of employers considering mitigating factors when contemplating disciplinary decisions. Here the Claimant’s length of service, track record and explanations substantially mitigated the breach in question.

In addition, this flags up 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.