Mr G Cowe v Represented by: Mr Q Muir Solicitor Chemring Energetics UK Limited — 2021

Mr G Cowe was dismissed summarily on 15 October 2020 after a random drugs and alcohol test on 27 August 2020 showed benzodiazepines in his system. He accepted during the process that he had taken one diazepam tablet that had not been prescribed to him, that he had no prescription in his name, and that he had also consumed alcohol the previous evening. The respondent treated this as a breach of its drugs and alcohol policy and concluded that the claimant was not fit for work because he was not drug free.

The tribunal found that the principal reason for dismissal was misconduct and that this was a potentially fair reason under section 98 of the Employment Rights Act 1996. Applying the Burchell approach and the section 98(4) reasonableness test, it held that the respondent genuinely believed the claimant was guilty of misconduct, had reasonable grounds for that belief, and had carried out a reasonable investigation. The tribunal relied on the safety-critical nature of the respondent's work, the claimant's supervisory role, the policy wording that non-prescription drugs meant the employee had to be drug free, and the claimant's inability to provide a prescription.

The tribunal also held that dismissal fell within the band of reasonable responses. It accepted that the respondent had considered mitigation, including the claimant's clean disciplinary record, but was entitled to conclude that a lesser sanction was not appropriate in light of the policy breach and the lack of accountability it found in the claimant's account. The appeal stage was also found to be a reasonable and proper part of the process. The claim for unfair dismissal was therefore dismissed, and the tribunal did not go on to determine remedy.