Drug and alcohol testing in the workplace can be problematic for employers particularly when considering the level of sanction to apply where an employee is 'caught out'. The recent case of Kuehne+Nagel Ltd v Cosgrove considered the issue.
Ms Cosgrove worked as an operative at one of Kuehne+Nagel's (K+N) warehouses. On 18 October 2009 K+N received a tip off that Ms Cosgrove had been smoking cannabis at a party a couple of days previously. K+N therefore requested that Ms Cosgrove take a 'for cause' drugs test under its substance misuse policy, which she consented to. The policy set out that a positive test alone could be considered a gross misconduct offence resulting in dismissal without notice.
The on-site test produced a positive result for the presence of cannabis within Ms Cosgrove's system and she was suspended pending the results of a second test. The subsequent laboratory test (designed to eradicate any rogue on-site results) also produced a positive test and Ms Cosgrove was therefore invited to a disciplinary hearing to face a charge of being under the influence of cannabis whilst at work.
At her disciplinary hearing, Ms Cosgrove apologised for her actions and accepted that, with hindsight, she would have done things differently. She was dismissed for testing positive for having cannabis in her system whilst at work and her appeal against the dismissal was rejected. Ms Cosgrove brought a claim for unfair dismissal.
At an Employment Tribunal hearing it was held that Ms Cosgrove was unfairly dismissed because the charge against her was being under the influence of cannabis and, despite the two positive tests, it was accepted that there was no evidence of impairment in Ms Cosgrove fulfilling her duties.
K+N appealed against the Tribunal's decision and, in particular, drew the Employment Appeal Tribunal's (EAT) attention to the fact that the Employment Judge had given no consideration to the safety-critical nature of the warehouse environment in which Ms Cosgrove worked which resulted in health and safety issues being of paramount importance to K+N.
The EAT allowed K+N's appeal finding that, amongst other things, the Employment Judge had erred by substituting his own view for that of the employer. The EAT commented 'that is demonstrated by his failure to have regard to the clear evidence of the respondent's substance misuse policy which identifies a positive drugs test as a gross misconduct matter, and, more generally, to the evidence relating to why the respondent had introduced that policy, the dangers obviously posed when employees (including the claimant) operate heavy machinery in a warehouse environment.'
The EAT remitted the case to a fresh Tribunal to be reheard. At the remitted hearing, the Tribunal found that Ms Cosgrove was unfairly dismissed on procedural grounds as the charge she faced (being under the influence of cannabis) did not tally with the reason for her dismissal (the positive tests alone).
However, the Tribunal found that any compensation awarded to Ms Cosgrove should be reduced by 100%. Firstly a reduction was made on the basis that had the charge just been about providing a positive test result the dismissal would have been fair and secondly in light of Ms Cosgrove's contributory fault given that she was aware of K+N's policies in relation to testing positively for drugs or alcohol in the workplace, accepted that what she had done was wrong and apologised several times for her actions. No compensation was therefore awarded to Ms Cosgrove.
Implications and practical considerations
The key issue in this case was whether an employer is entitled to rely on a positive test for drugs (or alcohol) alone as a fair reason to dismiss, in the absence of evidence of impairment such as slurred speech, glazed eyes or an accident. The decisions of the EAT and the second Tribunal should give employers comfort that relying on a positive test alone can be a sufficient reason for dismissal where the work environment is safety critical. The fact that Ms Cosgrove operated heavy machinery in a warehouse was key in this case and both the EAT and Tribunal may have arrived at a different conclusion had her role involved general administration in an office environment.
Other key points which can be taken from this case are:
- where an organisation employs individuals in a safety-critical environment and wishes to rely on positive tests for drugs or alcohol alone as a potential reason for dismissal this should be clearly set out in an appropriate policy
- it is also advisable to ensure that any such policy is communicated to employees so that they are fully aware of their obligations and the potential implications for testing positive for drugs or alcohol whilst at work
- any policy should provide information to employees about the methods for testing and the circumstances in which testing may be carried out including random and 'for cause' tests
- a consistent approach in dealing with employees who test positive for drugs or alcohol should be followed. In this case K+N gave evidence that all employees who test positive in such circumstances are ultimately dismissed (unless there are exceptional mitigating factors) as they are an employer who cannot take health and safety risks. Ms Cosgrove was unable to point to any employee who had not been dismissed in similar circumstances and the Tribunal therefore accepted that K+N applied a zero-tolerance policy to positive testing. However, where an employer deals with one employee more leniently than others, they will open themselves up to a challenge on fairness in light of any inconsistent treatment
Ms Cosgrove was effectively 'caught out' by her employer, as most employees who fail random or 'for cause' tests will be. However, in situations where an employee approaches his or her employer and volunteers that they have a substance abuse problem, Tribunals will expect the employer to attempt to assist the employee by perhaps offering counselling and a programme of testing moving forward rather than going straight to dismissal.
Shoosmiths' employment team advised Kuehne+Nagel Ltd in the case referred to above and are therefore well placed to advise on the issue of drug/alcohol testing in the workplace. Please contact us should you have any queries.
This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.