Mr G Carney v London Underground Limited — 2022

The claimant, a train operative and RMT representative, was selected for an unannounced drugs and alcohol test on 10 July 2020. After returning towards Loughton, he told a manager he had been sick and was booking off sick. The tribunal found that he was then told to attend for testing and warned of serious implications if he did not, but he went home, did not call back as he had said he would, and did not respond to later attempts to contact him.

The tribunal rejected the automatic unfair dismissal case. It found no real issue that the respondent's stated reason of conduct was not the true reason, and found no evidential basis connecting the dismissal decision or appeal decisions with the claimant's trade union activities. It accepted that the respondent dismissed him because of a serious and genuine concern that he had evaded testing under the drugs and alcohol policy.

For ordinary unfair dismissal, the tribunal held that the respondent could reasonably believe the claimant had deliberately avoided the test, had carried out a reasonable investigation, and that dismissal was within the band of reasonable responses given the safety-critical context. It rejected arguments based on the interaction between the attendance procedure and the drugs and alcohol policy, disparity with comparators, and the later Covid-related explanation. For wrongful dismissal, it found that the claimant's conduct on the day amounted to repudiatory conduct, including going home, not calling the manager back, and failing to respond to management contact.