Mr M Walker v Represented by, Mr R Lawson, Solicitor McGill’s Bus Services Limited — 2026

The tribunal upheld Mr M Walker's unfair dismissal and wrongful dismissal claims against McGill’s Bus Services Limited. He worked as a store manager from 4 July 2022 until 22 September 2025, with duties that included operating forklift trucks. On 28 August 2025 he refused requests to take 'for cause' drug and alcohol tests. Management had received a Snapchat video showing him putting beers into a fridge at work, with a caption about enjoying his work lunchtime. He had loaded the beers at engineering manager Colin Beattie's request.

Walker asked why he was being tested but was given no reason. The tribunal accepted that tester Tom Miller warned him once that refusal would be regarded as gross misconduct. Walker had received no HR induction and had not read the drug and alcohol policies before his suspension, although they were available through the employer's Blink system. The tribunal was not satisfied that he had made the alleged admission of drug use the previous evening; dismissing officer Neil Burge had not relied on that allegation. It also rejected Walker's contention that he had been victimised, accepting that random testing could explain differences in how often staff were tested.

Applying section 98 of the Employment Rights Act 1996 and the Burchell test, the tribunal found that the respondent had not established a potentially fair reason for dismissal. Refusal to take both tests was treated as one cumulative charge. Burge could reasonably regard the video as grounds for an alcohol test, but he accepted that there was no cause for a drugs test. The respondent had not advanced refusal of the alcohol test as a separate reason independently justifying dismissal. Its alternative argument that Walker had disobeyed a reasonable management instruction also failed because there was no basis for requiring a for cause drugs test.

The tribunal also found that the investigation and dismissal fell outside the band of reasonable responses. No investigation preceded the disciplinary hearing despite disputes about the grounds for testing, Walker's knowledge of the policies and what had been said. The Snapchat video was first shown to him at the hearing, and an adjournment was offered only after he had answered questions about it. His trade union representative, James Smith, was prevented from speaking on his behalf, and Smith's comments were excluded from the employer's minutes. The disclosure and representation failures breached the ACAS Code of Practice. There was insufficient evidence about the appeal process for the tribunal to assess its effect on the reasonableness of the investigation.

No Polkey reduction was made. A proper process was likely to reveal the absence of grounds for a drugs test and the failure to explain the testing request after Walker asked for a reason. The tribunal did not consider that a fair dismissal would have been available in those circumstances. It also declined to reduce either the basic or compensatory award for contributory conduct. Although refusing the tests led to dismissal, the refusal was not culpable or blameworthy: Walker had not consumed drugs or alcohol and had received no explanation for the tests. The warning about gross misconduct did not by itself make his refusal gross misconduct or justify a reduction.