Mr N Batt v Dow Silicones UK Limited — 2020

Mr Batt had long service with Dow Silicones UK Limited and a documented history of anxiety and depression. On 21 June 2018, while attending an occupational health appointment, he was suspected of being under the influence of alcohol, agreed to testing, and later received a positive laboratory result for cocaine. He was suspended, invited to a meeting on 26 June 2018, and then dismissed summarily. His appeal was unsuccessful. The tribunal recorded that the case would proceed to a separate remedy hearing, including consideration of reinstatement or re-engagement.

On unfair dismissal, the tribunal accepted that the principal reason for dismissal was misconduct and that Mr Howell and Mr Lamb genuinely believed the claimant had committed gross misconduct. However, it held that the investigation was not within the range of reasonable investigations required by s.98(4) ERA 1996 and the ACAS Code. The decision-makers focused on the positive drug result, did not properly consider the Substance Free Workplace policy, did not look at the actual test result, did not investigate the claimant's medical condition or mitigation, and treated the 26 June meeting as disciplinary without proper notice. The appeal process was also criticised because Ms Edwards relied on untested gossip that the claimant was an addict and gambler without giving him a proper chance to answer it. The tribunal therefore found the dismissal unfair and concluded, on the Polkey question, that a fair procedure would probably have led to a different outcome.

On the section 15 Equality Act 2010 claim, the respondent accepted that the claimant was disabled by stress and depression and knew of that disability. The tribunal found that the claimant's acute depression in early summer 2018 led him to take cocaine, and that this in turn caused the positive drug test which was the reason for dismissal. Although the respondent relied on health and safety on a COMAH site as a legitimate aim, the tribunal held that dismissal was not a proportionate means of achieving that aim. It noted that another employee who failed a drug test while actually working on site had been supported to remain in employment, and considered that lesser measures such as a final written warning, suspension pending treatment, and further testing were available.

On wrongful dismissal, the tribunal held that the claimant's conduct did not amount to gross misconduct on the facts found. The disciplinary policy referred to serious incapability at work brought on by alcohol or drugs, but the claimant was attending an occupational health appointment and was not working at the time. The tribunal accepted that the employer's own policies required consideration of individual circumstances and the background to the incident. In those circumstances, the respondent was not entitled to summarily dismiss the claimant without notice.