Ms J Davidson v National Express Limited — 2023

Ms J Davidson was dismissed by National Express Limited after three positive breath tests on 26 June 2021, with readings of 13, 10 and 8 mg/100ml. She said the results were caused by Listerine and antibiotics for a kidney infection, but the tribunal found the most plausible explanation was that she had consumed alcohol the previous evening. The respondent's alcohol and disciplinary policies treated a positive alcohol breath test as gross misconduct in a safety-critical driving role.

The tribunal accepted that the respondent had a genuine belief in misconduct, had reasonable grounds for that belief, and carried out a reasonable investigation, including testing the potential effect of Listerine. The initial investigation and disciplinary stages were found to be in accordance with policy. However, the appeal process was flawed because the appeal officer did not properly consider the claimant's appeal points and did not keep an open mind. On that basis, the unfair dismissal complaint succeeded, although the tribunal found there was a 75% chance she would have been fairly dismissed in any event.

The breach of contract / wrongful dismissal claim failed. The tribunal held that the claimant's conduct amounted to gross misconduct and was sufficient to justify summary dismissal without notice under the respondent's policies and the contract terms. For remedy, the tribunal used a basic weekly pay figure of £542.18 for the basic award and £420.33 net weekly pay for compensation. It awarded a basic award of £1,016.82 after a 75% reduction for contributory conduct, and a compensatory award of £2,664.70 net comprising £2,383.56 for loss of earnings, £34.38 for loss of statutory rights and £246.76 for pension loss, producing a total award of £3,681.52.