The company in question introduced a “zero-tolerance” policy in respect of alcohol and illegal drugs, stating that they were forbidden on the premises, could not be consumed during the working day, and employees would be suspended for being under the influence of them. Sometime later, it stated it would carry out drug testing for all staff and that a positive result or failure to comply with a request for a test could lead to dismissal for gross misconduct.
An employee raised concerns to HR that he smoked cannabis on a regular basis outside work to reduce stress. One day whilst in work, he realised he was too ill to continue working and started to leave but was told that the drug testing was taking place that day and was requested to undergo a test before leaving. He refused to take the test, for a variety of reasons, including that he knew the test would be positive (because he believed that cannabis stays in a person’s system for 45 days after use), and that the Health and Safety Executive states that the right to drug test must be in the employment contract. He was dismissed for failing to comply with the request for a drug test, and his appeal failed. He claimed unfair dismissal.
The tribunal found that the company had acted unreasonably in failing to consult employees regarding drug testing, and it had not taken adequate steps to address the employee’s concerns. For example, although the company was informed by the drug testing provider that cannabis remains in a person’s system for only three days after use, it failed to pass this information on to the employee, despite knowing that his misunderstanding was a key reason for his refusal to take the test. The tribunal noted that the company also failed to take any steps to assist the employee to “get clean” after he had informed it that he smoked cannabis, and found that a reasonable employer would have considered offering help or counselling when consulting on the introduction of such a draconian policy. The tribunal held that the employees dismissal was unfair and that, given the company’s unreasonable behaviour, his behaviour had not contributed to it.
If you would like to discuss this HR article in more detail, please contact our HR consultants at
This email address is being protected from spambots. You need JavaScript enabled to view it.
