Case roundup

This week’s case roundup

Drug testing leads to dismissal
O’Flynn v Airlinks the Airport Coach Co Ltd, EAT, 15 March 2002, [2002]
All ER (D) 05 (Jul)

O’Flynn was employed by Airlinks as a customer care assistant. Airlinks’
business involved the movement of members of the public around airports.

In November 1999, Airlinks introduced a drugs and alcohol policy. The policy
was made available to all employees and made clear that a positive drugs test
would lead to disciplinary action which might result in dismissal.

Airlinks indicated that it was also introducing a regime of random drug and
alcohol screening at a rate of 10 per cent of its workforce each year.

Five months later, O’Flynn was randomly selected for testing. The test
proved positive for cannabis. O’Flynn was asked to attend a disciplinary
hearing at which it was confirmed that the test had showed a positive result
for cannabis and she was summarily dismissed.

O’Flynn brought tribunal claims for unfair and wrongful dismissal. The
tribunal found in Airlinks’ favour, holding that the decision to dismiss fell
within the band of reasonable responses which a reasonable employer might
apply. O’Flynn’s appeal to the EAT was unsuccessful. The EAT found that the
tribunal had correctly held the dismissal to be fair and within a band of reasonable
responses.

TUPE transfer of taxi business
McLeod & anor v Ingram (t/a Phoenix Taxis) & anor, EAT, 22 April
2002, [2002] All ER (D) 204 (May)

Phoenix and Rainbow both ran taxi operations. Phoenix’s business involved
radio control of self-employed taxi drivers and Phoenix employed two radio
controllers. Phoenix was dissolved and re-emerged consequent upon an agreement
with Rainbow as part of Rainbow’s business. No employee was transferred to
Rainbow. However, relevant telephone numbers and the goodwill did transfer,
together with a first option on the taxi drivers’ services and the customer
contracts operated by Phoenix.

McLeod and his colleague, Phoenix’s radio controllers, subsequently brought unfair
dismissal claims, alleging their dismissals were connected with a transfer and
therefore automatically unfair. The tribunal found there had not been a
relevant transfer and accordingly, the employees’ dismissals were not unfair.
The employees appealed on the grounds that the tribunal had not given proper
weight, in fact any weight at all, to the express agreement between the two
businesses.

The employees were successful on appeal. The EAT looked at the agreement
between the parties, which included the transfer of a telephone contact list
and the goodwill, and held there was a relevant transfer within the meaning of
the Transfer of Undertakings (Protection of Employment) Regulations (TUPE)
1981. This was so even though there was no transfer of employees or tangible
assets between them.

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