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.

OP you're trying to do the right thing by this person, but there are things that don't stack up, as already highlighted by previous posters.

For me the elephant in the room is:

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.

I don't know of any large work related events being organised this month, certain not involving lots of people from various organisations.

Everywhere is in COVID19 lockdown, events of that scale aren't happening.

I wouldn't take everything he's told you as totally accurate gospel truth. Sorry.

@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..."

I agree, and it lacks credibility that someone with 30 years' service wouldn't be acutely aware of the likelihood of random drug testing by their employer.

Hi OP, this is very sad for your friend, but I think if he had reasonable prospects of success at Employment Tribunal then his union rep would have kicked off the tribunal process already.

Thank you all for your comments. Drip feed to clear up the confusion where I made it sound as if there was a big event a month ago - the event was some time ago and it turns out the random stranger gave him 3 tablets. He took two for the toothache on the day and had one left over. This is where you just want to shout “noooooo” - he needed a painkiller in December and stupidly came across the remaining painkiller. Then had the painkiller.
I do still think it was stupidity rather than deliberately taking recreational drugs. I really don’t see him as a drug taker.

A PP said he needed to go to ACAS before a tribunal, so I told him this. He rang them today and says they were very helpful so I’m happy now that he’s been able to get advice. I know they’ll tell him how best to proceed. And I can stop worrying about him! Thank you to the person who told me about ACAS.

Worker wins unfair dismissal case after being sacked over drugs test
mol.im/a/9177685

Just saw this in Daily Fail today.

Whether they were illegal drugs or someone else’s prescribed opiate / opioid painkillers they would have the same effect in safety in operating vehicles / machinery.

If he is so naive / unaware / unthinking as to take unknown tablets from a stranger is he the right person to be operating potentially dangerous machinery?

A tribunal isn’t there to plead for people you feel sorry for, it is there to take a higher look at whether policies and the law have been properly applied.

Be realistic: no employee is going to step forward and say ‘yes I gave someone one of my morphine based painkillers’, and the company are not going to go to the trouble and expense of trying to identify such a person in order to mitigate the actions of a sacked staff member. Because so what: the outcome is the same, he took a drug that could have compromised safety.

The last thing the company will want to be seen to be doing is mitigating against their own policies.

I am not without sympathy either, OP, but I think your kindness is skewing your perspective here.

P.S missed the Daily Mail link.
Contacting ACAS is the right thing to do, he needs all the info to tell them, including the substance he tested positive for.

And whether he himself operates machinery. The man in the DM was not a driver, but a ‘driver’s mate’. And it was cannabis, not an opiate.

I'd be surprised if he gets anywhere at a tribunal, OP friend is in charge of heavy machinery and it wasn't cannabis so nothing like the story in Daily Mail. If he's worked there 30 years he knew the drug policy and companies stance on it, if he did take an unknown substance for pain he could have declared it, but he doesn't even know what it is.
In an old company I worked for, there was no tolerance and it was made incredibly clear, from a one off to regular drug use, it didn't matter. If you got caught, you were out.

As he was dismissed he has the right to appeal - has he submitted an appeal to his (ex) employer?

I disagree with nearly everyone on this thread. And am shocked by your scepticism.

I believe that someone of lower intelligence took a Pain killer. Have you ever had absolutely chronic toothache? It can be the worst pain ever, only surpassed by passing a kidney stone. I believe him completely. I'd probably do the same if I was at a works do and the person sat next to me at lunch offered me tablets for my toothache pain that was so bad I could barely think straight. I wouldn't give a shit what they were.

I also have many many employees at my 3 latest companies who don't have email address. Yes. Even in this day and age.

I see this as a company being over vigilant. Where's their empathy? None! I see it as utterly brutal and opportunistic : Taking this situation to get rid of an employee who isn't that bright, a bit of a hindrance, He's worked there for 30 years so could be very costly in possible redundancy.

they are probably rubbing their hands with glee going : 'ooohhh lovely what an opportunity'.

I'm not entirely sure I would believe your friend's version of events OP.
Even if true he's incredibly daft to take an unknown pill from an unknown person whilst in that particular job. He would have had it drummed into him the rules re medication.

I'm sceptical tbh.

Your friend has spun you a fine old yarn.

A multi organisation work event a month ago?
He took a tablet he didn’t know from a person he didn’t know.
And then got called for a random drug test the next day?

Gosh how very unlucky!

And then, oh no wait... the event was months ago, and he was given three unknown tablets from an unknown person, and he saved one and just happened to take it the day before a random test. And no he couldn’t possibly trace this unknown person, and hasn’t a clue about what the drug actually was that he took. And he forgot to mention it at the random drug test.

I mean, just what are the odds eh?! The stars were really aligned against him that day for sure.

I believe that someone of lower intelligence took a Pain killer. Have you ever had absolutely chronic toothache? It can be the worst pain ever, only surpassed by passing a kidney stone. I believe him completely. I'd probably do the same if I was at a works do and the person sat next to me at lunch offered me tablets for my toothache pain that was so bad I could barely think straight. I wouldn't give a shit what they were.

Yes but if this was an excuse they accepted, then every employee would use it in some form or another.

@ToniTheDonkey

Thank you all for your comments. Drip feed to clear up the confusion where I made it sound as if there was a big event a month ago - the event was some time ago and it turns out the random stranger gave him 3 tablets. He took two for the toothache on the day and had one left over. This is where you just want to shout “noooooo” - he needed a painkiller in December and stupidly came across the remaining painkiller. Then had the painkiller. I do still think it was stupidity rather than deliberately taking recreational drugs. I really don’t see him as a drug taker.

A PP said he needed to go to ACAS before a tribunal, so I told him this. He rang them today and says they were very helpful so I’m happy now that he’s been able to get advice. I know they’ll tell him how best to proceed. And I can stop worrying about him! Thank you to the person who told me about ACAS.

The mind boggles.

I see this as a company being over vigilant. Where's their empathy? None! I see it as utterly brutal and opportunistic

Anywhere that has random drug testing generally has a zero tolerance policy, which all of their employees are made aware of.

He will probably have been given several opportunities to confirm any medication taken in the last 24-48-whatever number of hours, even down to plain old aspirin and paracetamol.

Are you suggesting that in this case they should have gone “ah he’s a nice bloke, he wasn’t to know that this unknown drug he took from an unknown person would have shown up in a drug test, he’s worked here for 30 years, let’s just let this one go and get him back on the heavy machinery and fingers crossed he doesn’t kill someone”.

@Oblomov20

Your interpretation

I believe that someone of lower intelligence took a Pain killer. Have you ever had absolutely chronic toothache?

doesn't tally with the OP's drip feed, that the bloke acquired 3 painkillers, used 2 for the toothache supposedly some time ago, so not in December. He took the 3rd tablet in December, for reasons unknown....

Drip feed to clear up the confusion where I made it sound as if there was a big event a month ago - the event was some time ago and it turns out the random stranger gave him 3 tablets. He took two for the toothache on the day and had one left over.

Quite frankly the situation sounds like a complete basket case. He may be of "lower intelligence" but he must have sufficient levels of reasoning and comprehension to be able to operate machinery/drive for this company for 30 years.

Who on earth consumes unknown tablets given to them by a random stranger?? That is unbelievable (literally).

It sounds probable that he isn't telling the truth, and he's going to have to come out with a more convincing and watertight explanation if he is to come out of this situation with a chance of getting another job. He's probably blown it with his current employer.

I've got to say this all sounds a bit far-fetched now. I can understand possibly being stuck at a work event with terrible toothache and not being able to leave to go to a supermarket or wherever for painkillers, so he would probably have been very grateful to take whatever a stranger was offering. However, the idea that he then kept the remaining unknown pill and used it (presumably months later as the original event must have been pre-lockdown) really isn't believable. Why would he even have kept or come across the pill? Why wouldn't have he have checked what he was taking to see if it was suitable for whatever pain he had in December? Surely his mother has some painkillers or he could go to a pharmacy?

@Oblomov20 thank you, that’s pretty much how I see it.