Mr M Jutsum v O3Biotech Limited — 2023

The tribunal found that Mr Jutsum started employment with O3Biotech Ltd on 16 April 2016, not 1 May 2021 as stated in the written particulars. The respondent conceded the inaccurate date, and the tribunal amended the particulars under s.12 Employment Rights Act 1996. Because the unfair dismissal claim failed, no monetary award was made under s.38 Employment Act 2002.

On the dismissal issue, the tribunal accepted the respondent's case that the reason was misconduct: its belief that the claimant had been using cannabis while carrying out his duties, including operating machinery, and had driven a colleague in a company car while under the influence. It found that Paul Draper honestly held that belief and that it was based on reasonable grounds, including Thais Mardegan's report, the observations around the claimant and his car, the materials found in the car, and the steps taken during the investigation.

The tribunal held that the investigation was sufficient for a reasonable belief to be formed, even though some aspects could have been handled differently and Mr Draper had some involvement in the investigation as well as the disciplinary hearing. It noted the ACAS Code point that, where possible, different people should handle investigation and hearing, but concluded that in the context of a small employer this did not make the process unfair. It also held that the proposed appeal arrangement and the absence of an appeal did not render the dismissal unfair.

Applying the Burchell approach, the range of reasonable responses test, and s.98(4) ERA 1996, the tribunal concluded that summary dismissal was within the range of reasonable responses given the health and safety context of the work. The unfair dismissal claim was therefore dismissed, and there was no need to make findings on Polkey or contributory fault.