Mr Jonathan Ferguson v Represented by:10 Mr P McGowan - Solicitor Call Direct Limited — 2024

Mr Jonathan Ferguson brought claims for unfair dismissal and wrongful dismissal. His disability discrimination and holiday pay complaints had been withdrawn before the final hearing. The respondent's policies stated that illegal drugs or being under the influence at work could be gross misconduct, and the Handbook also stated that a positive drugs test would be treated as gross misconduct. After a random drugs test on 26 August 2022 returned a positive result for cannabis metabolite, the claimant told the respondent that he had smoked cannabis the night before and said that he used it to help with stress, anxiety, insomnia and depression.

The tribunal held that the respondent had a potentially fair conduct reason under s.98(2)(b) ERA 1996 and that the real reason for dismissal was the failed drugs test, even though the dismissal letter referred to use of illegal drugs and a breakdown of trust and confidence. It found that, although the invitation and dismissal letters did not perfectly mirror the policy wording, the claimant knew the allegation was that he had failed a drugs test and had a fair opportunity to question the test process. The employer reasonably relied on the external tester's explanations and on the claimant's admission that he had smoked cannabis the night before the test.

Applying British Home Stores Ltd v Burchell and Iceland Frozen Foods Ltd v Jones, the tribunal concluded that the investigation was reasonable and that dismissal fell within the band of reasonable responses under s.98(4) ERA 1996. It accepted that the respondent had queried the cut-off issue with the tester, passed the explanation back to the claimant, and was entitled to rely on the positive laboratory result and the claimant's own account. The unfair dismissal claim was therefore dismissed.

For wrongful dismissal, the tribunal found as a matter of fact that the claimant had failed the externally administered drugs test and had admitted smoking cannabis the evening before. In light of the Handbook and Alcohol and Drugs Policy, which stated that illegal drugs were not permitted and that positive testing would be treated as gross misconduct, the tribunal held that the claimant was in repudiatory breach of contract and that summary dismissal without notice was justified. The wrongful dismissal claim was therefore dismissed, and no monetary award was made.