![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
United Kingdom Employment Appeal Tribunal |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Renewi UK Services Ltd v Pamment (UNFAIR DISMISSAL) [2021] UKEAT 2021-000584 (26 October 2021) URL: https://www.bailii.org/uk/cases/UKEAT/2021/2021-000584.html Cite as: [2021] UKEAT 2021-584, [2021] UKEAT 2021-000584 |
[New search] [View without highlighting] [Printable PDF version] [Help]
At the Tribunal | |
On 21 July 2021 | |
Before
MICHAEL FORD QC, DEPUTY JUDGE OF THE HIGH COURT
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
V
For the Appellant | MR SIMON FORSHAW (of Counsel) Instructed by: Clyde & Co (Scotland) LLP 144 West George Street Glasgow G2 2HG |
For the Respondent | MS HELENA IFEKA (of Counsel) Instructed by: Addleshaw Goddard LLP Exchange Tower 19 Canning Street Edinburgh EH3 8EH |
SUMMARY
UNFAIR DISMISSAL – FAIRNESS OF DISMISSAL – POLKEY DEDUCTIONS – CONTRIBUTORY CONDUCT
The Claimant, who was a Team Leader working in recycling, tested positive for cannabis as part of a random drugs test. He was dismissed on 31 March 2020 following a disciplinary hearing on the basis that he was under the influence of drugs which affected his performance. An appeal was unsuccessful. The Employment Tribunal held that the Claimant was unfairly dismissed because, among other matters, the Respondent paid no or insufficient regard to mitigating factors, it was not the Claimant's job to drive a van, there was no impairment of the Claimant's performance at work and the dismissing manager had obtained evidence about the treatment of comparable cases from an HR employee who was not wholly objective. The Employment Judge also criticised the reliability of the test result.
The Employment Judge went to find that there should be no reduction to compensation (i) based on Polkey v AE Dayton Services Ltd [1988] ICR 142 or (ii) owing to contributory conduct under s.122(2) and s.123(6) of the Employment Rights Act 1996.
Held (allowing the appeal). In relation to the question of fairness, the Employment Tribunal had wrongly substituted its own findings in deciding that the cannabis did not affect the Claimant's performance and it was not his job to drive a van, rather than focussing on the reasonableness of the employer's belief about these matters. While the Tribunal was entitled to have regard to the failure of the Respondent to have regard to mitigating factors, it also substituted its own judgment in criticising the reliability of the drugs test in considering that the information about comparators was tainted by the lack of objectivity of the source.
On the question of the Polkey deduction, the Tribunal's reason that the involvement of the HR employee "went to overall fairness but not to a consideration of a Polkey reduction" could not be reconciled with principles on Polkey summarised in Software 2000 Limited v Andrews [2007] ICR 825. The Tribunal also erred in relation to contributory conduct, by reasoning that the Claimant would not have been dismissed if the Respondent had acted in accordance with its own policies. First, there is no causation test in s.122(2), on the basic award. Second, s.123(6) requires a tribunal to examine the actual conduct of the Claimant and ask itself if that conduct caused or contributed to the dismissal, and not to answer the different question of whether a claimant would have been dismissed if the Respondent acted reasonably, fairly or in accordance with its own policies.
MICHAEL FORD QC, DEPUTY JUDGE OF THE HIGH COURT
Introduction
Outline facts
(1) A policy on Alcohol, Drugs and Medicines, which came into effect on 1 November 2018. Its objectives included minimising the risks associated with drugs and alcohol at work, laying down clear rules on substance abuse and supporting employees with alcohol and drug problems. It defined "drug abuse" as including the use of illegal drugs. Under "Policy Rules" it stated that working under the influence of alcohol or drugs was unacceptable. It explained that the Respondent used screening and testing as a means of controlling drugs and alcohol problems. The Policy indicated that in the event of suspected misuse of drugs, management would decide whether it would be "treated as a matter for discipline rather than a health problem". It went on to say:
"In circumstances where an employee breaches the policy on an individual case, such as reporting for work drunk or under the influence of drugs at work, we will class this behaviour as a conduct issue and handle it via the normal disciplinary procedures."
It added that where an individual admitted to a drugs or alcohol problem, the disciplinary process "may be held in abeyance".
(2) A Health and Wellbeing Policy, also dated December 2017, which had a section dealing with drugs and alcohol. It stated that where the Respondent was aware that an employee may have a problem with substance abuse it would focus on rehabilitation; but "Any employee discovered to be under the influence of alcohol or illicit drugs may suffer disciplinary action - such misuse is defined as gross misconduct by Renewi".
(3) A Disciplinary Policy, listing "being under the influence of alcohol, drugs or any substance which impact [sic] performance and those around you" as an example of gross misconduct.
(4) A Driving Policy, dated December 2017, which stated that driving under the influence of alcohol and drugs that "may affect your ability to drive" was not tolerated.
"Carl [the Claimant] said he was a Team Leader. His team would deliver orange bags and service bins out on the streets. He deals with agency hours, ordering of supplies etc.
Marc mentioned Carl's responsibility to his staff and their safety. Carl said he was very disappointed in himself. He knew he had let them and himself down.
Marc asked how many staff reported to him and Carl answered 5.
Marc asked if Carl ever did any driving. Carl answered that only when absolutely necessary if no one else was available, but it was not a regular part of his job.
Marc asked Carl how he felt about driving a company vehicle and the impact on the company's reputation had he been tested while driving.
Carl said he knew he had let the company down badly. He said he loves and values his job and everything he does and would never intentionally do anything to hurt the company's good name.
Marc asked Carl if the vehicles he drives have company markings on. Carl confirmed they did not. They are just white vans"
"I understand your recent poor health condition and appreciate your honesty surrounding your reasons for starting to smoke cannabis. However, I must consider the Company position in my decision and therefore conclude that the above act constitutes gross misconduct, namely 'being under the influence of alcohol, drugs or any other substances which impact performance or those around you' and 'Gross incapability e.g. loss of faith or trust and confidence in ability to perform role as per specific examples of gross misconduct in the Company Disciplinary Policy. As a result, you are summarily dismissed on the grounds of gross misconduct".
The Tribunal's Reasons
(1) At paragraph 61 the EJ appears to have found that because there was no issue with the Claimant's performance at work during the period he was smoking cannabis, he was not in fact "under the influence" of cannabis for the purpose of the Drugs, Alcohol and Medicines Policy.
(2) The EJ made some criticisms of the reliance on the test results at paragraphs 62-64. He questioned whether the legal limit for driving was relevant[1]; questioned the cut-off point in the test; and criticised the test as being an initial one requiring laboratory analysis, ignoring that a second, confirmatory test had been conducted by Crystal. This paragraph contained some factual errors, which I address below.
(3) Next, at paragraph 66 the EJ referred to various "difficulties" with the Respondent's pleaded case. The paragraph combines criticisms of the evidence before the Respondent with factual findings. For example, the EJ said it was "a presumption without evidence that the Claimant's behaviour and abilities would have been affected" by cannabis (paragraph 66.3), and found that in fact it "was not the Claimant's job to drive a vehicle" (paragraph 66.2), his role was not "safety critical", he did not work with recycling machinery and he worked as a "driver's mate" (paragraph 66.5). Though the Tribunal referred to what the Claimant had told Mr Congdon at the disciplinary meeting as the source of this evidence, it is clear that some of these findings do not correspond with the evidence of the Claimant at that hearing.
(4) The Tribunal made further criticisms of the Respondent at paragraphs 70-71. These included the following: (i) Mr Congdon was in fact heavily influenced by what Ms Bailey told him after the disciplinary hearing, echoing the finding of fact at paragraph 58 (see paragraph 70.1); (ii) there was no evidence that the Claimant's performance at work was adversely affected (paragraph 70.3); (iii) as a matter of fact the Respondent failed to consider mitigating factors, such as why the Claimant took cannabis, his long service and his good record (paragraph 70.5); (iv) the Respondent treated a failed drugs test as inevitably gross misconduct leading to dismissal (paragraph 71).
(5) At paragraphs 72-75 the EJ criticised Mr Lee's decision on appeal. In relation to Mr Lee's evidence that the Claimant was required to drive a van as part of his job, the EJ stated "[the Claimant] was not required to drive a van" and found it was not a sufficient reason to dismiss the Claimant because, as Mr Lee contended, he might in future relapse and drive a van above the legal limit (paragraph 72). The Tribunal was similarly critical of Mr Lee's view that the cannabis was not prescribed, describing this as "lacking realism", and his taking into account that the Claimant had not told the company he was taking cannabis for medical reasons (paragraphs 73-74). In rejecting Mr Lee's evidence as to why he had dismissed the appeal, the EJ again found that "the use of cannabis by [the Claimant] had not interfered with his health, social function, work capability or conduct" (paragraph 75).
(6) Following his decision that that cannabis had not affected the Claimant's performance, the EJ reasoned that "as a matter of simple logic, the sole reason for dismissal was that the cannabis was illegal not legal" (paragraph 77). He was also critical of Mr Congdon and Mr Lee for not considering it relevant that the Claimant took cannabis owing to acute back pain, echoing his earlier finding that the Respondent failed to consider mitigating factors.
"80.1. No (or inadequate) account was taken of the genuine reason for taking cannabis.
80.2. Likewise for of [sic] his long unblemished service
80.3. Ms Bailey was consulted before the decision was taken, and after the telephone disciplinary hearing, and her information (that everyone was dismissed) if they did not resign) was a factor in Mr Congdon's decision to dismiss Mr Pamment.
80.4. It was taken to be gross misconduct because it was a failed test, without any assessment of the circumstances.
80.5. It was a matter of policy that everyone who failed a drugs test would be dismissed if they did not resign. Even if it was gross misconduct that is unfair, as even for gross misconduct there must be consideration of whether dismissal is unfair.
80.6. It was a key part of the justification for dismissal that there was a risk to the public and colleagues by Mr Pamment driving a company vehicle, said to be an integral part of his job, when it was not, and there was no evidence that he had driven a company vehicle since 6 January 2020 (The summation of the grounds of resistance has justifies [sic] dismissal in part by wrongly asserting that Mr Pamment had breached the Road Traffic Act 1988).
80.7. There was unevidenced reliance on health and safety risks when there was no evidence of any such risk (Mr Pamment being driver's mate in a 7.5 tonne truck driven by another delivering orange sacks around London Boroughs, and maintaining the bins containing them).
80.8. There had been no concerns about the Mr Pamment's work or attitude (or in any other way) after his return to work on 6 January 2020.
80.9. No account was taken of the ethos of the Respondent towards those with difficulties, notably the drugs and alcohol section of the Health and Wellbeing Policy, which states "… Renewi, where it is aware that an employee may have a problem with substance abuse, will concentrate on rehabilitation". That expressly does not preclude disciplinary action for those at work "under the influence of alcohol or illicit drugs", but that did not apply to Mr Pamment as that requires an impairment of performance and there was none in his case.
80.10. The policy on alcohol drugs and medicine expressly commits the Respondent to supporting employees with drug problems, and that expressly includes illegal drugs (set out in the definitions section of the policy).
80.11. Dismissal was for misconduct, when Mr Pamment was accepted to fall within the non disciplinary part of the drugs policy.
80.12. Mrs Bailey was not wholly objective, given the texts of September 2019 and the Respondent's continuing view of this towards Mr Pamment, and had an influence on Mr Congdon's decision to dismiss.
80.13. Mr Lee's appeal reasons did not engage with any of the above."
The Grounds of Appeal
Grounds (1) and (2): Substitution on Unfair Dismissal
"41. On the liability issue the ET ought to have confined its consideration to facts relating to the Trust's handling of Mr Small's dismissal: the genuineness of the Trust's belief and the reasonableness of the grounds of its belief about the conduct of Mr Small at the time of the dismissal. Instead, the ET introduced its own findings of fact about the conduct of Mr Small, including aspects of it that had been disputed at the disciplinary hearing. …
42. The ET used its findings of fact to support its conclusion that, at the time of dismissal, the Trust had no reasonable grounds for its belief about Mr Small's conduct and therefore no genuine belief about it. By this process of reasoning the ET found that the dismissal was unfair. In my judgment, this amounted to the ET substituting itself and its findings for the Trust's decision-maker in relation to Mr Small's dismissal."
Mummery LJ went on to contrast the exercise conducted by an employment tribunal in objectively reviewing the fairness of a dismissal with the very different issue about an employee's conduct in relation to contributory fault, which is a decision for the tribunal, not the employer, based on the evidence heard by the tribunal (paragraph 44).
"… As a general rule, however, it might be better practice in an unfair dismissal case for the ET to keep its findings on that particular issue separate from its findings on disputed facts that are only relevant to other issues, such as contributory fault, constructive dismissal and, increasingly, discrimination and victimisation claims. Of course, some facts will be relevant to more than one issue, but the legal elements of the different issues, the role of the ET and the relevant facts are not necessarily all the same. Separate and sequential findings of fact on discrete issues may help to avoid errors of law, such as substitution, even if it may lead to some duplication."
"Mr Jones' submission, which found favour with the EAT, is an attempt to stretch the band of reasonable responses to an infinite width. In assessing the reasonableness of the decision to dismiss, length of service is not forbidden territory for the employment tribunal. The fact that Mr Newbound was an employee of 34 years' service with a clean disciplinary record was a factor the judge was fully entitled to take into account: it would have been extraordinary if he had not done so."
(1) At paragraph 70.4 the EJ decided that Mr Congdon had a "mistaken reason" for an adverse opinion of the Claimant because he did not explain the source of his view that cannabis is sometimes prescribed. Mr Congdon had said in his witness statement that the fact the cannabis taken by the Claimant was not prescribed "had an impact on my decision. Cannabis that is not prescribed is an illegal drug" (paragraph 10). Whether cannabis was prescribed or not was a reasonable matter for Mr Congdon to explore, given its obvious relevance to mitigation. In deciding his belief was "mistaken" the EJ seems to have reached his own view of the facts about cannabis prescription, and departed from reviewing the fairness of Mr Congdon's response.
(2) In making various criticisms of the Respondent's reliance on the test results at paragraphs 62-64, the EJ made some wrong assumptions and factual errors. He wrongly stated that the test had a cut-off point of 15 ng/ml - presumably a reference to the preliminary test - whereas in fact the confirmatory test showed that the Claimant had a level of over 500 ng/ml; and he criticised the test as being an initial one requiring further laboratory analysis, ignoring that a second, confirmatory test had been conducted by Crystal. In themselves, these errors do not amount to errors of law. But in my judgement the approach taken in those paragraphs, including the EJ's decision that it was "illogical" to conclude that cannabis affected performance but to ignore the result for opiates, shows him substituting his own views of why the testing procedure was inadequate, rather than assessing the fairness of the Respondent's procedure and decision.
(3) The EJ's conclusion that cannabis did not in fact affect performance seems to have driven his conclusion that the "sole reason for dismissal was that cannabis was illegal not legal" (paragraph 77). For, once the effect of cannabis on performance was eliminated, the necessary result was that there must have been some other reason for the dismissal. In reaching this conclusion, the EJ drifted away from the actual reason for dismissal - that the Claimant's performance at work was affected - and from considering whether the Respondent had reasonable grounds for this belief.
Grounds (3) and (4): Polkey Deduction.
"84. The implementation of the procedure was not fair, in that Ms Bailey had an input into to it after the hearing and before the decision. It was not unfair for Ms Bailey to provide guidance as to how to run a meeting. It was unfair for her to have Mr Congdon's ear given the background of September 2019 which was still relevant to the Respondent (see grounds of resistance). That goes to overall fairness not to a consideration of a Polkey reduction.
85. I do not find that there should be any Polkey reduction in any award."
Ground (5): Contributory Conduct.
"87. … Given the analysis above, I do not consider that any reduction for contribution is warranted. The Respondent's own position means that the presence of the drug itself would have been uneventful if (as they thought it could be) it was prescribed. One is left with the fact that it was an illegal drug only. But that is not something that leads to dismissal if the Respondent's own policies are applied in suitable cases.
88. Nor does the evidence subsequently obtained by the Respondent as to the levels of cannabis help [a reference to evidence from Crystal obtained after the dismissal], as the causation of the dismissal can only be by reason of things known at the time. They were right that it was a high level, but all they knew about it was that it was high, but that it had no discernible effect on the work performance of Mr Pamment."
Ground (6): Perversity
Disposal
"… In neither case is the appeal tribunal to make any factual assessment for itself, nor make any judgment of its own as to the merits of the case; the result must flow from findings made by the employment tribunal, supplemented (if at all) by undisputed or indisputable facts. Otherwise, there must be a remittal."
Note 1 This was based on the evidence of Mr Congdon that the legal limit for driving was 2 ug/l (equating to 2,000 ng/l or 2 ng/ml). [Back]