Dismissal of Employee for Testing Positive for Cannabis Found Unfair

An employment tribunal has found that the dismissal of an employee who tested positive for cannabis was unfair. The employer had failed to take into account his long service, his reason for using the drug and his unblemished record.

The case of Pamment v Renewi UK Services highlights the importance of employers acting reasonably in the circumstances when it comes to dismissals involving positive drug tests.

The Facts of the Case

The employee had been employed for around 14 years and worked as a Team Leader. From December 2019 the employee had taken cannabis on some occasions to help him with his acute and chronic back pain and to help him sleep. The employee had been off work for six months due to back problems and returned to work in January 2020, without having a return to work interview as his line manager was not available.

The employer had in place a drug policy for substance misuse and a drug testing policy. In March 2020 the employee was randomly selected for a drug test. It tested positive for cannabis. The employee was taken through a disciplinary process, before coming to a decision the manager conducting the disciplinary contacted HR to ask about what had happened in similar cases. He was told all employees who had tested positive had either been dismissed or resigned. The manager dismissed the employee for gross misconduct.

The employee’s appeal was unsuccessful and he complained to an employment tribunal that he had been unfairly dismissed.

The employment tribunal agreed with the employee finding amongst other matters that:

  • The employer had concluded that the employee had committed gross misconduct without an assessment of the wider circumstances; they had relied on him being over the legal driving limit for cannabis when driving was not part of his job, his role was not safety critical and his performance whilst using the drug had not been called into question.
  • The employer had not considered whether support for potential drug issues could be explored as an alternative to dismissal. The employee was found to have had a genuine reason for taking cannabis – it was not hedonistic, and it was found that had there been a return to work meeting after his absence for his back pain the employee would have told his line manager about his cannabis use.
  • The employer had not taken into consideration the employee’s long and unblemished service and that he had told the company that he would stop using cannabis and would pay to have regular drug tests himself.

The amount the employee will be awarded will be determined at a separate tribunal hearing.

Kingfisher’s Advice

If an employee fails a drugs test it’s important to ensure that a full and fair investigation is conducted and that any action taken is reasonable in the circumstances. This is especially the case where an employer is considering dismissal.

If you are considering taking disciplinary or any other action in respect of an employee, please contact Kingfisher Professional Services Ltd for advice on the facts of your case.

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