In person For the v Respondent — 2021

Mr Bonner worked in a safety-critical yard role for Fourways Plant Limited, operating forklifts and other machinery. After laser eye surgery on 21 April 2018 he took four 50mg tablets of Tramadol given by his partner. When he attended work on 23 April, a routine drugs test was positive; he did not tell his line manager or the tester that he had taken painkillers, and he later admitted that he had taken the tablets. The tribunal found that the respondent operated a zero-tolerance Substance Misuse policy and that the claimant had breached it.

On unfair dismissal, the tribunal accepted the respondent's reason as conduct and held that it had carried out a reasonable investigation, had a genuine belief on reasonable grounds, and was entitled to treat the matter as gross misconduct. It found that Ms Foley conducted the disciplinary hearing and that Mr Twort conducted the appeal as a rehearing; his familial relationship to Ms Foley did not make the appeal unfair. Applying s.98(4) ERA 1996 and the Burchell approach, the tribunal held that dismissal fell within the range of reasonable responses.

The wrongful dismissal claim failed because the tribunal found that attending work under the influence of non-prescribed Tramadol amounted to a fundamental breach of contract, so summary dismissal without notice was justified. The holiday pay claim also failed: the tribunal found that the claimant had been paid his full holiday entitlement of 10 days, made up of 8 days already taken and 2 days paid on termination. The provisional remedy hearing was vacated because all claims were dismissed.

The direct race discrimination claim was dismissed because the tribunal found that Mr Daniels was not a proper comparator. It accepted that Mr Daniels' case pre-dated the respondent's Substance Misuse policy, involved a third-party test rather than the respondent's own testing, and did not include an admission that he had taken a prohibited drug. The tribunal also noted that other white employees who breached the policy had been dismissed, and it found no facts from which it could infer that the claimant was treated less favourably because of race.