Mr C Smith v Veolia ES Merseyside & Halton Limited — 2021

Mr C Smith brought a constructive unfair dismissal claim arising from a series of events in 2019 and 2020. He withdrew one alleged breach, namely the complaint that the respondent had failed to deal adequately with his grievance between 8 January and 24 February 2020. The tribunal treated the remaining allegations as possible breaches of the implied term of trust and confidence and as possible 'last straw' events.

The tribunal rejected the allegation that John Whitham falsely accused the claimant of defrauding the respondent of company sick pay, finding that the social-media posts about the claimant's shoulder injury gave reasonable grounds to ask questions and to begin an investigation. It also rejected the allegation that Ian Hitchen told the claimant he had to return to full-time work on the line or go back on sick leave, finding that the claimant had not proved that conversation on the balance of probabilities.

The tribunal further found that the random drug test, the suspension after the first non-negative test, and the refusal to postpone the second test were all reasonable and in accordance with policy. It accepted that the claimant had taken unprescribed pills obtained from his second cousin, that the later laboratory result was seven times over the respondent's limit, and that the second test on 23 December 2019 was reasonable because the respondent relied on independent advice rather than unspecified internet material. It also rejected the contention that being suspended and escorted from the premises on 23 December amounted to dismissal or any breach of trust and confidence.

The tribunal did not accept the allegation that the 2 March 2020 mediation involved improper conduct by Mr Whitham, and it relied on the positive post-mediation letter from Mr Cannon and the absence of any contemporaneous complaint. Finally, it held that the letters at pages 482 and 483, concerning the trade union's concerns about random drug testing and the respondent's explanation of its policy, were not blameworthy conduct and could not amount to a last straw. The tribunal concluded that there had been no conduct calculated or likely to destroy or seriously damage trust and confidence, that the claimant had not been dismissed within section 95(1)(c) of the Employment Rights Act 1996, and that the claim therefore failed.