On appeal

Continuing our series on the implications of recent significant cases, Hugh
Calloway, associate solicitor in the commercial litigation department at
Glanvilles Solicitors looks at issues surrounding some employment-related

Dismissal for testing positive for drugs was fair
O’Flynn v Airlinks the Airport Coach Co Ltd EAT/0269/01 – unreported

O’Flynn was a customer care assistant and had been employed for more than
two years when the company introduced an alcohol and drugs policy. The policy
was based on zero tolerance of drugs and also introduced a random screening of
10 per cent of the workforce per annum. The policy not only stated that a
positive drugs test would lead to disciplinary procedures, which would probably
result in dismissal, but included reporting for duty with drugs in the system
within their definition of gross misconduct.

O’Flynn was randomly selected and admitted to the nurse she had taken
illegal substances, whereupon she was suspended. The test proved positive and
she was called to a disciplinary hearing, which she attended with a
representative. At the hearing she agreed she was aware of the policy and knew
that a positive test result was a dismissible offence. She was dismissed, did
not appeal and claimed she had been unfairly dismissed.

The EAT held that the tribunal had been correct by applying the standards of
a reasonable employer and finding the employer had established reasonable
grounds for the belief that O’Flynn was guilty of misconduct, and that the
investigation was reasonable in all the circumstances and a decision fell
within the bounds of reasonable responses that a reasonable employer might

The EAT also considered the effect of the Human Rights Act 1998. While the
Act could have no application because it came into force after the random drug
test, the EAT did consider what would have occurred had the Act been in force
at the time.

The EAT concluded that the argument that it was a breach of the Act would
not necessarily have succeeded for a couple of reasons. First, the company
policy was not that the employee should not take drugs, but that the employee
should not report to work with drugs in their system as evidenced by a positive
drugs test or a refusal to submit to a drugs test. Second, the employee could
have been required to assist drivers, and therefore the policy was necessary to
protect public safety.

The employer therefore had legitimate safety concerns and the tribunal’s
conclusion that the employer’s response in introducing the policy and random
testing was proportionate and could not be criticised.

The main point to come from this case is that the policy only took effect
when the employees reported to work with drugs in their system, that the policy
was necessary for health and safety reasons and the policy was a proportionate
response for those safety reasons. It was an important fact that O’Flynn could
have been asked to undertake driving coaches and to serve hot drinks to members
of the public on moving coaches.

Tribunals must look at procedure objectively
Sainsburys Supermarkets Ltd v Hitt, Court of Appeal, 18 October 2002

Hitt was employed by Sainsburys as a baker when he was dismissed for alleged
misconduct, having been accused of stealing. He issued an application in the
Employment Tribunal alleging that Sainsburys had failed to carry out a
reasonable procedure and there were no sufficient grounds for Sainsburys to
disbelieve his assertion that someone else had placed the stolen items where
they were found.

Sainsburys suspended Hitt on full pay pending an investigation, which
confirmed there were grounds for believing that the allegations against him
were true. Hitt was dismissed following a disciplinary hearing, which was
upheld on a later internal appeal.

The current test raised in the case is contained in Section 98 of the
Employment Rights Act 1996. This related to confusion as to whether the
tribunal should question the employer’s alleged reason for dismissal and
evaluate for itself the evidence which may lead to a conclusion contrary to the
employer’s. In other words, should the tribunal place itself in the position of
the employer and evaluate the evidence in the disciplinary process?

In Hitt it was reiterated that the tribunal must not substitute its own
opinion as to what was a reasonable and adequate investigation, but instead
follow the three-part test in British Home Stores Ltd v Burchell 1980 ICR 303.
This test states that the tribunal must decide whether the employer believed
there had been misconduct, that the employer had reasonable grounds upon which
to sustain that belief, and that the employer at the stage at which he formed
that belief on those grounds had carried out as much investigation into the
matter as was reasonable in all the circumstances.

In conclusion, therefore, the tribunal must look at the procedure
objectively and determine whether a reasonable person would have found the
procedure to be reasonable in all the circumstances, and must not substitute
its own view.

Hugh Calloway Tel: 01983 523663 h.calloway@glanville.co.uk

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