Was it correct for the Tribunal to make a finding of unfair dismissal on its own assessment of the facts?

The Employment Appeal Tribunal (“EAT”) in the case of Renewi UK Services Ltd v Pamment has considered whether the Tribunal was correct in concluding an employee was unfairly dismissed after testing positive for cannabis as part of a drugs test at work.

Background

The Claimant worked as a Recycling Team Leader for Renewi UK Services Ltd (“the Respondent”). The work of the Respondent involved teams of its employees delivering recycling bags in East London by van and using 7.5 tonne lorries to empty large bin banks, which involved work with heavy machinery. The Claimant did not have to drive the van and did not have a licence to drive the vehicles, but he was responsible in leading teams in carrying out this work.

The Respondent required the Claimant to carry out a urine test as part of a random drugs test as permitted and provided for in their relevant workplace policies. The Claimant subsequently tested positive for cannabis. The Claimant was invited to an investigation meeting the same day and placed on suspension. Following a disciplinary hearing, he was then dismissed on 31 March 2020 for gross misconduct and on the basis he was under the influence of drugs which affected his performance at work. He unsuccessfully appealed the decision and later brought a claim of unfair dismissal to the Employment Tribunal (“ET”).

The Law

Section 94 of the Employment Rights Act 1996 (“ERA”) provides for the right for an employee not to be unfairly dismissed by their employer. An employer has to establish a potentially fair reason for dismissal under section 98(1) ERA and whether a dismissal is fair or unfair depends on whether the organisation acted reasonably or unreasonably in deciding to dismiss the employee for that reason (section 98(4) ERA).

In determining whether a dismissal is fair, the Employment Tribunal will consider whether a fair procedure was followed (i.e. the ACAS Code of Practice) and whether the employer acted reasonably in treating the reason as a sufficient reason for dismissal – i.e. did the decision to dismiss fall within the range of reasonable responses.

Decision

In the first instance, the ET held that the Claimant was unfairly dismissed. The ET concluded that the Respondent did not have sufficient regard to any mitigating factors, including that the Claimant was not required to drive a van during the job at anytime and there was no impairment or effect on his ability or performance at work. The ET further criticised the reliability of the drugs test result.

The Respondent appealed the decision. The Employment Appeal Tribunal in allowing the appeal, held that the ET had wrongly substituted its own view and findings rather than focusing on the reasonable beliefs of the employer at the time of the incident. The ET assessed themselves whether the finding of cannabis did impact the employee’s performance, which is not the correct application of the legal test. The ET further substituted its own judgment in criticising the reliability of the drugs test. The appeal was therefore allowed, and the findings of the ET dismissed.

Comment

This case is a helpful reminder of the established principle that it is irrelevant whether or not the Tribunal would have dismissed the employee if it had been in the employer’s shoes. It is not for the tribunal to substitute its own view to the matter. Rather, the role of the ET is to decide whether the employer’s decision to dismiss the employee fell within the range of reasonable responses that a reasonable employer in those circumstances may have also made and with the available knowledge they had at the time. Therefore, as long as an employer can demonstrate to the satisfaction of the ET that their decision to dismiss fell within the range of reasonable responses available, the Tribunal cannot assert their view otherwise.

Case reference: Renewi UK Services Ltd v Pamment EA-2021-0000584-DA

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