Mr P Clarke v Bae Systems Marine Limited — 2020

Mr Clarke had worked for BAE Systems Marine Limited since 1978 and was in a safety-critical plant maintenance plumber role. In late 2018 he began taking CBD oil after enquiries with the product supplier and Occupational Health about whether it might affect a drugs test. On 29 January 2019 he was selected for a random drugs test, which returned a positive result for cannabis at 17ng/ml against a threshold of 15ng/ml, and he was suspended pending investigation.

The tribunal accepted that the respondent investigated the matter through an investigation meeting, disciplinary hearing and appeal, each conducted by managers with no prior involvement and with the claimant represented throughout. It found no material breach of the ACAS Code. The claimant argued that the CBD oil should have been analysed after he produced bottles at the investigation meeting, but the tribunal held that it was reasonable for the respondent to decline that offer because the test had been taken around two weeks earlier and the bottles were opened and used.

The tribunal also found that the disciplinary documents were not as clear as they should have been, but that the claimant had not been misled by them. It accepted that he had been concerned enough about drug-testing risk to make enquiries before taking the product, and that Occupational Health had not given him any assurance that it would be safe to do so. The dismissing officer took account of his long service, clean disciplinary record and character references, but concluded that a positive test in a safety-critical role amounted to gross misconduct and warranted summary dismissal.

Applying section 98(4) of the Employment Rights Act 1996 through the Burchell framework, and referring to A v B, Iceland Frozen Foods v Jones and Sainsburys v Hitt, the tribunal held that the dismissal was fair both procedurally and substantively. It therefore dismissed the unfair dismissal claim. In the alternative, it said that if dismissal had been unfair it would have found 100% Polkey contribution and 100% contributory conduct.