The next step

The tribunal’s ruling in the case mentioned in the article

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Unfairly dismissed over cannabis use

Back problem

Mr Pamment (P) had worked for Renewi UK Services (R) for 14 years. In 2019 he was signed off work with a back problem for over six months, returning in January 2020.

At that point R failed to undertake a return to work meeting with P meaning that it had little information about his medical condition, his treatment and pain management choices.

Drug testing

In March 2020 R conducted random drugs testing of its employees that in worked in safety-critical roles. This process identified that P was “over the limit” for opiates, morphine and cannabis.

P‘s GP had prescribed the opiates and morphine for his back pain and he’d started using cannabis as a further form of pain relief.

Gross misconduct

P was suspended and later called to attend a disciplinary hearing. Prior to that hearing taking place, the appointed chairperson, Mr Congdon (C), spoke to Ms Bailey (B) who was based in R’s HR department. B informed C that everyone who had failed a drugs test previously had either resigned or been sacked, i.e. nobody had remained in R’s employment.

After the disciplinary hearing, C decided that P should be dismissed without notice for gross misconduct as he had not discussed his cannabis use with management at any time and the amount found to be in his blood was over the legal limit for driving.

Unfair dismissal

P claimed unfair dismissal. He pointed to the fact that he’d never been offered a return to work meeting (he stated that had this occurred, he would have disclosed his cannabis use to management) and that he didn’t drive for work-related purposes.

P was employed as a driver’s mate so, in his view, him being over the legal limit for driving was an irrelevant factor which R shouldn’t have referred to or relied upon.

Tribunal ruling

The tribunal sided with P, finding that R had not taken into account P’s genuine reason for taking cannabis, i.e. it was for pain relief, or his long and unblemished service record. It also held that C’s dismissal decision was influenced by B’s comments about previous cases and that shouldn’t have happened (see The next step ). A remedy hearing will take place at a later date.

Tip. Don’t make any assumptions about cannabis use or how it might affect an employee at work. If discovered, give them an opportunity to explain their reasons and take these into consideration along with any available medical evidence.

Tip. Irrelevant issues, such as cannabis affects driving but the employee doesn’t drive for work-related purposes, have no place in disciplinary allegations or hearings. If you seek to rely on them, a dismissal will likely be found to be unfair.

For the tribunal’s ruling in this case, visit https://www.tips-and-advice.co.uk , Download Zone, year 23, issue 05.