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Original poster

Is it worth going to employment tribunal?

68 replies

ToniTheDonkey · 22/01/2021 04:30

An acquaintance of mine has just been sacked for failing a random drugs test. He swears blind he has never taken drugs in his life (he’s middle aged not a young club-goer) and I believe him.

He was offered a painkiller by someone (during the daytime, not at a pub or club, not a social setting) and foolishly took it. He does now realise it was stupid and dangerous to take someone else’s medication but he was in a lot of pain. Next day he fails a random drug test.

He had a union rep represent him virtually at a disciplinary hearing, but he was sacked. He’s heartbroken, had worked there all his adult life, loved the work and the people. He just wants his job back, he’s not after compensation.

I asked him if the union rep had suggested going to an employment tribunal but he said they hadn’t. Is there any point in him applying to a tribunal himself re unfair dismissal? Dismissal was exactly a month ago, and I know you have to do it within 3 months.

For info, he does not have a computer or an email address and even if he did I’m not sure he would know how to use the internet.

OP posts:
TheoriginalLEM · 22/01/2021 04:34

What is his job? Ive never known anyone have to do a drug test for work

yawnsvillex · 22/01/2021 04:34

He took unprescribed drugs. He failed the drugs test.

How do you see this as unfair dismissal?

He hasn't a leg to stand on!

BackwardsGoing · 22/01/2021 04:36

What was his job? If for example he was a pilot and the safety of others depended on his clear headedness then not a chance.

Did he see the results of the test?

It's very unlikely a tribunal would compel a company to reemploy him.

wellthatsunusual · 22/01/2021 04:38

I'd be really suspicious of an adult of working age who claims not to have an email address. For at least 20 years I've needed one for applying for jobs for starters. Not to mention that a degree of IT literacy is needed in almost every job these days, even if it is just submitting a timesheet for payroll. So if he's dishonest about that, who knows what the truth is.

If the union haven't advised him to proceed to the next stage, maybe they know something that you don't, or maybe in their judgement it would just add to his stress with no chance of success.

KatherineJaneway · 22/01/2021 04:41

An employment tribunal settles disputes but from the facts here, it sounds like all processes were followed correctly? I am assuming random drug tests are allowed for the job he is doing and that your acquaintance knows that failing a drugs test is a dismissable offence in his job contract?

If so, I am not sure what grounds he would have to take action. Do you know the name of the tablet that he took?

ButterMeUpScotty · 22/01/2021 04:50

@wellthatsunusual I don’t think that’s necessarily fair. I work for an organisation where a large proportion of staff do not have work email addresses or access to a work device due to the nature of their jobs. Many of these people work rurally and go to a central hub to collect their job list once a week which is printed for them. Many of them also have worked in the organisation for 20 plus years and have never had to use email as the organisation accepts hard copy applications. I know that in equivalent organisations in my UK country that this is a fairly common scenario. So I don’t think it is fair to brandish OP’s friend a liar on this basis.

Regardless OP sounds like he doesn’t have a leg to stand on-took an unprescribed drug, failed the test and therefore sacked. Sounds clear cut to me.

flashbac · 22/01/2021 05:01

Does he have a disability?

wellthatsunusual · 22/01/2021 05:10

I can understand not having a work email address but I honestly can't imagine how anyone functions these days without a personal one, unless they have a disability that renders it difficult or impossible, in which case I know that obviously businesses have to make adjustments to accommodate that. Eg I have a few bills that are only issued by email, there is no option for a paper copy. My mother is almost 90 and has an email address because she reached the stage where it was just too difficult to function without one.

BlueThistles · 22/01/2021 05:10

Any medication needs to be declared to the employer prior to testing... and prescription/meds shown at testing to the Drug&Alcohol
officer ... thats how the guidelines work for my employer ...

Obviously you need to check the Company Drug&Alcohol policy 🌺

Dee1975 · 22/01/2021 07:42

He would need to do the reconciliation service with Acas first. They open conversation with the employer. You need to do that ASAP (within the 3 months I think). You can’t go to tribunal without doing that first.
Seems a bit harsh to sack him for a first time ‘offence’ which was explained via the pain killer. Whilst the facts are he failed. I’m going to assume he had a good service record before that and therefore sacking seems a bit ott.

AlternativePerspective · 22/01/2021 07:53

He took drugs, he failed a drugs test. It’s not rocket science.

I’m guessing this painkiller wasn’t paracetamol. As they say, ignorance is no defence. He won’t make that mistake again will he? Quite apart from the fact that taking someone else’s unknown medication is pure idiocy on anyone’s part, if you know that your employer conducts drugs tests and that failure of those tests will result in dismissal then you need to be a bit more aware of what it is you’re taking.

If this is the workplace policy he doesn’t have a leg to stand on.

flowery · 22/01/2021 07:58

It’s absolutely impossible to say whether it’s worth going to a tribunal with this little information. His dismissal could have been perfectly fair and lawful or it could have been completely disproportionate and unreasonable. That will depend on lots of factors including:

His job
Company rules about drugs
Company rules about random testing
How the testing was carried out
The procedures that have been followed
His previous record

Even if the answers to the above mean his dismissal was unfair, whether it’s worth bringing a tribunal claim will depend on:

How strong the case is
How likely it is that he might get another job
Whether his union will support him
Whether he has access to funds for legal advice/representation

Basically, we can’t say. But as his union have been involved, they will know the answers to all or most of those questions so they should be able to give an informed opinion about his chances/options.

RaspberryCoulis · 22/01/2021 08:02

@TheoriginalLEM

What is his job? Ive never known anyone have to do a drug test for work
Loads of jobs have random drugs testing! Most of the jobs I've come across are "safety critical" - like train drivers, air traffic controllers, people who work in nuclear power stations or manage the gas network. Because you don't want anyone doing those when they're on drugs - legal or otherwise.
AdventureIsWaiting · 22/01/2021 08:10

I work in an industry that does this. It is made very, very, very clear that if you take any mediation beyond paracetamol / ibuprofen, you declare it to your line manager, who calls the medscreen line to confirm you are safe to work. Alcohol is also forbidden within 12 hours of starting work, so no coming to work hungover - if you are ever in this position you call in sick. When I've had tests before you are asked several times if you have taken anything that might cause you to fail the test - that was his chance to say something.

Unless he'd only worked there 5 minutes I have limited sympathy for him, and the person who handed out their (presumably strong prescription if it caused him to fail a test the following day) meds is an idiot. He should have called in sick if he was in that much pain; again, I can only go on my industry, but partly because of the strict rules around drugs & alcohol, you aren't expected to 'soldier on', you are expected to phone in sick and be fully better before returning.

I'm not a lawyer, or an HR professional, but I would be surprised if - noting my first paragraph - he would have a case; surely the company would just point to their regulations and policies stating that he should have proactively declared any mediation that might cause him to fail?

AdventureIsWaiting · 22/01/2021 08:11

Sorry, just seen @flowery has replied whilst I've been typing. Go by whatever she says - she's an expert!

Berthatydfil · 22/01/2021 08:19

Honestly - I have to think either he has a codeine or other drug habit that he keeps very well controlled and the unknown tablet is an excuse, or he has very poor judgement to take unknown medication from a person without knowing what it was while being employed in a zero tolerance of drugs profession.

Alternatively do you think he was set up and someone gave him the tablet - told him it was something benign - lied then they tipped off HR?

Has he been told what was detected.

If it is the second option then could he offer a hair strand test as this might show if there was evidence of long term drug use.

RainingBatsAndFrogs · 22/01/2021 08:26

Will the person who gave him the painkiller give a signed statement that he gave him the tablet, and identify the tablet?
Could the results of the drug test confirm that the drug found was as in the painkiller?
Could he get a GP letter confirming that he was in pain / had a painful condition?

Were all these things pursued at the disciplinary stage?

Is there an appeal stage in the disciplinary procedure policy?

Does he have a household contents insurance policy under which he is covered for legal advice for employment issues?

StepOutOfLine · 22/01/2021 08:30

I wouldn't believe your friend tbh.

It wasn't one co-codamol let's face it.
And I wouldn't want him behind the wheel of that delivery truck/doing my surgery either.

But, leaving aside the totally unbelievable story of him not having an email address (which is only relevant I suppose to explain why you're posting on his behalf here) flowery has given you the advice he needs.

Rainbowshine · 22/01/2021 08:36

What flowery wrote is spot on. I work in HR, we know too little to judge this. Did your friend appeal the decision with his employers? If not then he hasn’t helped himself with any claims.

Original poster
ToniTheDonkey · 22/01/2021 08:42

@KatherineJaneway

An employment tribunal settles disputes but from the facts here, it sounds like all processes were followed correctly? I am assuming random drug tests are allowed for the job he is doing and that your acquaintance knows that failing a drugs test is a dismissable offence in his job contract?

If so, I am not sure what grounds he would have to take action. Do you know the name of the tablet that he took?

Unfortunately he doesn’t know what it was. Yes, very stupid of him. He knows that now, but of course hindsight is a wonderful thing
OP posts:
Original poster
ToniTheDonkey · 22/01/2021 08:46

@RainingBatsAndFrogs

Will the person who gave him the painkiller give a signed statement that he gave him the tablet, and identify the tablet? Could the results of the drug test confirm that the drug found was as in the painkiller? Could he get a GP letter confirming that he was in pain / had a painful condition?

Were all these things pursued at the disciplinary stage?

Is there an appeal stage in the disciplinary procedure policy?

Does he have a household contents insurance policy under which he is covered for legal advice for employment issues?

Unfortunately he was very naive. He didn’t know the person who offered him the painkiller - he was someone present at a work-related event (but not someone who worked for the same company who happened to be there when my friend had very bad toothache. I hadn’t thought about the legal cover on home insurance, he lives with his elderly mother so she might have organised that with the insurance. I will suggest he checks it out, thank you.
OP posts:
Original poster
ToniTheDonkey · 22/01/2021 08:48

@TheoriginalLEM

What is his job? Ive never known anyone have to do a drug test for work
He works for a very large national company which has many different arms. He and his colleagues sometimes operate machinery or have to drive company vehicles so they do random testing.
OP posts:
Original poster
ToniTheDonkey · 22/01/2021 08:48

@yawnsvillex

He took unprescribed drugs. He failed the drugs test.

How do you see this as unfair dismissal?

He hasn't a leg to stand on!

I’m just clutching at straws!
OP posts:
Original poster
ToniTheDonkey · 22/01/2021 08:49

@BackwardsGoing

What was his job? If for example he was a pilot and the safety of others depended on his clear headedness then not a chance.

Did he see the results of the test?

It's very unlikely a tribunal would compel a company to reemploy him.

He would sometimes have to operate machinery or drive work vehicles so it is safety related, I’m just clutching at straws because I feel sorry for him.
OP posts:
Original poster
ToniTheDonkey · 22/01/2021 08:53

@wellthatsunusual

I'd be really suspicious of an adult of working age who claims not to have an email address. For at least 20 years I've needed one for applying for jobs for starters. Not to mention that a degree of IT literacy is needed in almost every job these days, even if it is just submitting a timesheet for payroll. So if he's dishonest about that, who knows what the truth is.

If the union haven't advised him to proceed to the next stage, maybe they know something that you don't, or maybe in their judgement it would just add to his stress with no chance of success.

I believe him about the computer/email. He has always done a manual job and had been with the same company for 30 years so when he started it would have been before the days of applying online. How do I put this nicely and not sound insulting? I think he might not be as well educated as one would have hoped someone of his age would be and maybe a tiny bit under average intelligence. Gosh that sounds nasty but he is a very nice bloke, just perhaps a bit too innocent and trusting.
OP posts:
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