Is it worth going to employment tribunal?

[ToniTheDonkey]

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.

Taking mystery medication from a complete unknown was beyond stupid, especially since he must have known he was subject to drug testing at work. It could well have been an illegal drug for all he knew (or a thinly veiled excuse for knowingly buying and taking illegal drugs). I really don't see that he's likely to have any case, especially if as @AdventureIsWaiting says, there are clear rules and policies about declaring anything more than OTC medication. If he was in terrible pain, he should have bought OTC meds or seen a doctor. As it stands, his best excuse is "I knew I was taking something unknown from a perfect stranger and also that I have to be sober for work, but I thought it would be OK because, er..."

@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?

I’m just clutching at straws because I feel sorry for him. He doesn’t know the name of the tablet and now realises, with the benefit of hindsight, that it was stupid and dangerous to take medication that hasn’t been prescribed for you.

@flashbac

Does he have a disability?

No, but how do I put this nicely? I think he is not as well educated as one would have hoped. He is quite naive and trusting, almost in a childlike way. I don’t think he has learning difficulties but may be a tiny bit under average intelligence, I know that sounds a horrible way to describe someone, but he’s a really nice man. Never married, still lives with his elderly parent, I think that conjures up an image.

@wellthatsunusual

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.

Wow, very impressed by your mother’s skills, it’s great that she has embraced changes in technology. I’m afraid my acquaintance isn’t the same. He’s had a manual job, been with the same employer for 30 years so hasn’t needed to apply for jobs etc online.

@Dee1975

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.

Thank you, I will suggest ACAS to him. I’ll have a look at their website and print some info off for him and put through his door, He had 30 years of good service with the same company. He’s very loyal to them and his colleagues so he’s absolutely heartbroken.

What was it that he tested positive for? That's the first question that needs to be answered.
Do you know OP?

@flowery

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.

Thank you for your reply. I’ve been told you’re the expert! From what you say there won’t be any point going to tribunal. He was very silly but he’s a quite naive and trusting person. He now realised he shouldn’t have taken someone else’s medication but it’s a bit late now. He’s perhaps not as well educated as one would have hoped and although I don’t know of any learning difficulties he maybe is a tad under average intelligence. But a very nice man who I feel sorry for and wanted to see if I could help him. He had 30 years of good service with that company and I was just clutching at straws that that might have been in his favour.

I know a couple of people who still do not use computers or have an email address. They don’t have disabilities. They did not grow up with computers though and didn’t use them for work.

Unless he has a diagnosed LD I think the only think he can do is appeal to his employer's mercy. Did he tell the whole truth when the result came back? Otherwise he needs to move on, try to find another job where he will be happy. Are there any support schemes for older jobseekers in your area? E.g. charities? With the right support he will be able to move on.

@Berthatydfil

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.

I’d be incredibly surprised if he had an addiction. I think he was just very naive and stupid. He know realises that it was stupid and dangerous to take medication that wasn’t prescribed to him, but hindsight’s a wonderful thing and he doesn’t have a time machine. I don’t think he was set up. The person who gave him the tablet was just another delegate at a work related event that he didn’t know (which makes taking this bloke’s medication even worse idea) and doesn’t work for the same company. The hair strand test is interesting. He’s got long enough hair that it might be possible. Bad luck if you’ve got a shaved hair!

In his place I would make a huge effort to locate the person who gave him the painkiller. Someone at that event must have known them.

@Respectabitch

Taking mystery medication from a complete unknown was beyond stupid, especially since he must have known he was subject to drug testing at work. It could well have been an illegal drug for all he knew (or a thinly veiled excuse for knowingly buying and taking illegal drugs). I really don't see that he's likely to have any case, especially if as *@AdventureIsWaiting* says, there are clear rules and policies about declaring anything more than OTC medication. If he was in terrible pain, he should have bought OTC meds or seen a doctor. As it stands, his best excuse is "I knew I was taking something unknown from a perfect stranger and also that I have to be sober for work, but I thought it would be OK because, er..."

Yes, he was very stupid to take unknown medication from a stranger and he realises that now, but it’s too late now. He had really bad toothache whilst attending a work related event and I sympathise with him as toothache can be awful. Given the circumstances of the event and that he wouldn’t have had any contact with the stranger at a later date, I don’t think the stranger was giving free samples of illegal drugs to get him hooked. Admittedly I don’t know him that well but I know plenty of people who have known him for many years and I’m 99.9% sure he wouldn’t have intentionally taken “recreational” drugs (I hate that wording) He was very stupid and naive and he’s got himself into a mess. I’m just clutching at straws wanting to try and help him as he is a genuinely nice man.

@supersonicginandtonic

What was it that he tested positive for? That's the first question that needs to be answered. Do you know OP?

I don’t know, but will ask. He was very flustered when he told me what happened so didn’t mention, other than “drugs”

@DrinkFeckArseGirls

In his place I would make a huge effort to locate the person who gave him the painkiller. Someone at that event must have known them.

It was a large work related event but not fun by his employers, so lots of people from various organisations. I will suggest to him that he contacts the organisers. They won’t be allowed to give him names of attendees but the organisers must have a record so might be able to send a mass email to everyone who attended saying “if you err the person who gave a stranger some painkillers at XYZ event, please contact us” Not sure if the organisers would be prepared to do that, but it’s worth suggesting to him. Of course if the person who supplied the “painkillers” knew they were dodgy they won’t respond to the event organisers.

@ToniTheDonkey if it's opiates then that will explain the painkiller. Anything else will have been an illicit substance. I'd be surprised if they were not given chance to give an explanation.

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, apologies that I jumped to the wrong conclusion. I made the mistake, as ever, of thinking of all the people I know who do manual jobs or whatever and comparing. I should probably be less cynical.

I'm not suggesting that he actually did source something from a dealer, @ToniTheDonkey, but surely you can see that other than the exchange of money, it's effectively the same encounter. He took something completely unverifiable from a stranger. Plenty of people do get into illegal drugs by developing an addiction to painkillers prescribed for legitimate pain, and the company would be within their rights to say that that story could easily be a figleaf for knowingly sourcing and consuming illegal drugs.

Assuming that he is informed of his workplace's policy on drugs, sobriety, and declaring any medication, I can't see that he has any leg to stand on, because if he has undertaken training or signed confirmation of having read their drugs policy, he is effectively saying that he knowingly broke it. That might be worth exploring though - what is the company policy on drugs and testing, and what is his awareness of it?

@Respectabitch I certainly do see where you are coming from. He was very stupid. He would have been very aware of the drug policy and the random drug testing but I think he was very naive in taking a random tablet from a random stranger and not thinking (possibly being too innocent or trusting) about the consequences.
I know it looks bad which is why I asked if there was any point in him going to a tribunal if it is very clear cut that he was in the wrong. I was just clutching at straws as I wanted to help him as he is a genuinely nice bloke.

I'm sorry OP but I don't really believe his story.

For one, it's not usual to accept medication from a stranger. I would actually say it's very unusual. You would maybe ask if someone has some paracetamol but not take anything given to you.

It's even more unusual that you would accept meds and not ask what it was.

Then somehow forgetting about it during the test and failing to mention that he has indeed taken something in unusual circumstances when he would be used to being asked that question.

And then being accused but not feeling any desperation to find out what the drug actually was?

I heard of a story of someone getting a positive drug test when absolutely certain he'd taken nothing. It turned out that the test was so sensitive it picked up something from sesame seeds on a bun, as these are related to cocaine.

The first thing anyone accused and shocked at the results would be desperate to know what they had been given.

It's much more likely that he took some drugs, maybe as a one off, and got caught but trying to convince himself and others that it was someone else's fault.

Who was running large multi organisation events a month ago?

I’d be wary OP. The employer would still be within their rights to have very serious concerns over an employee taking an unknown drug from an unknown source and then potentially operating machinery! It could have been absolutely anything and shows a shocking lack in judgement. Drugs test or not, I would say this remains potential gross misconduct and is not a good enough argument to base an appeal or ET on.

[quote ToniTheDonkey]@Respectabitch I certainly do see where you are coming from. He was very stupid. He would have been very aware of the drug policy and the random drug testing but I think he was very naive in taking a random tablet from a random stranger and not thinking (possibly being too innocent or trusting) about the consequences.
I know it looks bad which is why I asked if there was any point in him going to a tribunal if it is very clear cut that he was in the wrong. I was just clutching at straws as I wanted to help him as he is a genuinely nice bloke.[/quote]
I have maybe not read the thread fully enough, but I was also feeling about it sorry for somebody with 30 years service, below average IQ, being fired for taking pain medication. I was wondering was it overly harsh compared to how others have been treated and trying to avoid a redundancy payment for a 30 year tenure employee..

But then I saw this post, that he took a tablet from a random person? I had assumed he had taken it from a colleague who could maybe back it up. By definition about 50% of the population are of below average IQ, but I cannot imagine very many would just take a pill a random stranger offered them.

My conclusion is that I don’t think you really have the proper facts and I dare say the company are on more solid ground than I first thought.

Unfortunately he may not have a leg to stand on OP.

If it was an opiate (like codeine) that is listed as a class B under the Misuse of Drugs Act 1971 then he has still illegally taken a controlled substance without a prescription (with a prescription then he would be covered under the misuse of drugs Regulation 2012.

Controlled substances in the MDA 1971 still carry the same penalties as the other substances such as marijuana, cocaine etc.

People don't realise, especially when accepting every day drugs like codeine that if they get caught in possession then they can be prosecuted under the Act.

I'm not a solicitor, but do work in Pharma Regulation.

www.gov.uk/government/publications/controlled-drugs-list--2/list-of-most-commonly-encountered-drugs-currently-controlled-under-the-misuse-of-drugs-legislation

If the drug he took was on this list then he should not pursue.

Info from TUC here might be helpful:

www.tuc.org.uk/resource/drug-testing-workplace