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 disputes
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 apply.
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