Mr R Bartlam v Roxane (UK) Limited — 2020

This was a preliminary hearing on 8 September 2020 before Employment Judge Connolly sitting alone. The claimant brought a single unfair dismissal claim against Roxane (UK) Limited. It was not in dispute that the respondent had a disciplinary policy treating being under the influence of illegal drugs during working hours as gross misconduct, that its substance misuse policy provided for random drug testing and a zero tolerance approach, and that the claimant tested positive for a cocaine metabolite and accepted that cocaine was in his system. It was also not in dispute that the claimant was dismissed because of that test result, and that dismissal would be fair if he had knowingly taken the drug.

The issues identified were whether the respondent had reasonable grounds to reject the claimant's explanation that his drink had been adulterated by or on behalf of a manager or other employee, and whether anything said by the appeal manager at the outset of the appeal hearing about the claimant's tribunal claim rendered the dismissal unfair. The tribunal recorded that the respondent considered the explanation inherently implausible but still investigated the possibility of drugging at work, including obtaining a signed statement from a manager who had reviewed CCTV of the forklift truck where the claimant kept his drink and saw no suspicious activity.

The tribunal also found that neither the manager nor any other employee knew when the random drug test would be carried out, so there was no obvious opportunity to adulterate the drink within the relevant period. It noted that the appeal manager later sent a detailed letter setting out the reasoned basis of the decision. On that basis, the tribunal held that the claim had little reasonable prospect of success and made a deposit order of £300 as a condition of the claimant being permitted to continue to advance the unfair dismissal claim. If the deposit was not paid by 2 October 2020, the claim would stand dismissed without further order.