A Network Rail technician was unfairly dismissed for failing a drug and alcohol test after a herbal tea he had started drinking was found to have traces of cocaine, the employment tribunal found.
While finding Mr Glenholmes’ dismissal unfair due to procedural issues, employment judge Martin Brewer determined he should not receive compensation because he had no doubt that the claimant was entirely to blame for his dismissal.
Glenholmes joined Network Rail in 2014 as an on-train technician, a safety-critical role. As such, in September 2020 he was subject to a periodic drugs and alcohol test, which found he tested positive for benzoylecgonine, a metabolite of cocaine routinely looked for in urine to establish use of the class-A drug.
Network Rail’s HR team initiated a disciplinary procedure, which saw Glenholmes suspended with immediate effect. In October 2020 he provided a statement for the investigation saying the most likely cause of his failed test was that he had drunk Inca tea which he had bought for its digestive benefits from a market stall. Glenholmes was prescribed medication for a disability which caused him indigestion.
The product – Mate Tea, “The tea of the Incas” – did not include a list of ingredients but having researched the product, the claimant now understood that the tea contained cocaine. He said: “Having the information and research which I now know, I would not have in good conscience bought the product or consumed it.”
The investigation recommended a formal disciplinary hearing based on the finding that the claimant “knowingly
ingested coca tea without understanding what it contained”. This was scheduled for November, but the claimant then suffered periods of ill-heath.
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Glenholmes also raised a grievance about a lack of due diligence, citing what he called errors with the investigation meeting minutes. The grievance was upheld, a new disciplinary manager was appointed.
In April 2021, Glenhomes requested his urine sample be retested at his own expense and that the laboratory be asked how coca tea and cocaine could be differentiated in future because “it’s going to happen again and there should be something in place to stop it happening”.
This, said the judgment, evidenced an apparent misunderstanding on the part of the claimant that there was a difference between cocaine and coca leaves.
The lab replied: “Drinking coca tea can cause a positive result for benzoylecgonine, the main urinary metabolite of cocaine as the donor is actually drinking tea with cocaine in it… we cannot tell if the cocaine positive result is due to drinking coca tea or using cocaine by other means, as the benzoylecgonine detected in both cases is due [to the] ingestion of cocaine. This is because coca tea is made from coca plant leaves and contains cocaine… drinking cocaine in tea does not make it legal.”
The lab said that the retested sample was positive for benzoylecgonine at 417ng/ml, over four times the cut-off amount in his urine which the laboratory said was “consistent with misuse of a controlled drug”.
In the light of the positive retest, after Glenholmes was told a disciplinary hearing would go ahead, he suffered further mental ill health issues meaning the hearing was not held until June 2022. The following month he was told he would be summarily dismissed. He appealed but this was not upheld.
Cocaine tea dismissal
In the tribunal decision, the judge said: “That the claimant’s conduct was culpable cannot, in my judgment, be in doubt. Given that after the failed drug test he seemingly very quickly identified the tea as the source of the cocaine, this is clearly something he could have done prior to drinking the tea, but he chose not to.
“The claimant chose to replace over the counter medication with what was clearly a different form of treatment. In my judgment it ought reasonably to have occurred to the claimant that if the tea was as effective as he said it had been in his evidence, the active ingredients ought to have been investigated as they were clearly having the same or an even better effect than the over the counter medication he had hitherto been taking. The claimant’s sister clearly understood the possible problem with the tea from Peru and in my judgment so should the claimant have.”
The judge said that Glenholmes deliberately contradicted the terms of the drug and alcohol policy and therefore his contract “by not finding out what he was ingesting when drinking tea from South America where the packaging showed no ingredients”.
Given the facts, the judge said Network Rail Infrastructure’s dismissal of Glenholmes was clearly within the band of reasonable responses. He added: “In my judgment it is not just and equitable to award the claimant any compensation… Although there were procedural problems with how the case was dealt with by the respondent, leading as it did to the respondent’s concession that the dismissal was procedurally unfair, these are not so serious as to mean that the dismissal was also substantively unfair and in my judgment it was not.
“In short, had the procedure been within the band of reasonable response the claimant would still have been dismissed, quite possibly sooner than was in fact the case. In that case I would reduce the compensation to nil for contributory conduct.”
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