Gordons Employment Update - 14 December 2018
Friday 14th December 2018
Toot toot! Bus driver unfairly dismissed for failing drugs test
A bus driver’s dismissal for gross misconduct following the failure of a routine drugs test was unfair, so ruled the employment tribunal in Ball v First Essex Buses Limited.
In order for a dismissal to be fair it must be for a potentially fair reason, and the employer must have acted reasonably when treating the reason(s) as sufficient to justify the dismissal. This includes a requirement to follow a fair procedure. An investigation into potential misconduct must be sufficient so that the allegations are clear and can be responded to. More serious allegations should have correspondingly more thorough investigations.
Mr Ball is a 61 year old diabetic who had worked for First Essex Buses Limited (‘FEBL’) for 21 years when a saliva sample tested positive for cocaine following a random test. Mr Ball denied he had ever taken drugs, offered a number of alternative theories as to how the drugs could apparently have entered his system, and also provided the results of his own hair follicle test. FEBL rejected his arguments and his test, and his dismissal was confirmed following two appeals against the decision.
Decision and comment
The Tribunal upheld Mr Ball’s claims for wrongful and unfair dismissal. It found that the employer had made various errors during the investigative process, notably in declining to further investigate the failed drugs test despite Mr Ball’s long and unblemished employment record, despite being presented with alternative theories. This had the effect of FEBL closing its mind to any outcome other than guilt and meant it had not acted reasonably.
This case highlights that employers would be unwise to place all their eggs in the basket of a single failed drugs test, even where public safety could be at stake. Being unwilling to investigate further can show an element of predetermination that will not find favour in an employment tribunal. This will particularly be the case where the seriousness of the allegation and the surrounding facts are such to warrant a greater degree of investigation.
Discrimination: Excluded conditions
In Wood v Durham County Council the EAT considered whether an employee demonstrated the excluded condition of a ‘tendency to steal’.
Discrimination which relates to certain protected characteristics, including disability, is unlawful. ‘Disability’ is any physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities.
Certain conditions are excluded, meaning they do not amount to an impairment within this definition, for example a tendency to set fires, or an addiction to alcohol. For the purposes of the present case, a tendency to steal is also excluded.
Mr Wood suffers from depression, post-traumatic stress disorder (‘PTSD’) and dissociative amnesia. He worked for the Durham County Council (the ‘Council’) in a role that required Non Police Personnel Vetting (‘NPPV’). While out shopping, he left a Boots store without paying for four items, which led to him being issued with a £90 Penalty Notice for Disorder by the police.
Several months later, Mr Wood’s line manager became aware of the situation when Mr Wood’s NPPV clearance was refused. Mr Wood was dismissed, with the Council citing criminal conduct outside of the workplace, withdrawal of NPPV clearance, and the risk of reputational damage.
Mr Wood argued that his PTSD and amnesia left him prone to forgetfulness, including forgetting to pay for the items in question, and that the Council had discriminated against him by dismissing him unfairly. The Council accepted that Mr Wood was disabled, but argued that a tenancy to steal was not protected by legislation.
Decision and comment
The EAT focussed on whether Mr Wood’s actions in Boots had demonstrated a tendency to forget (to pay for the items as he claimed), or a tendency to steal. It ruled that a manifestation of his PTSD and dissociative amnesia was a tendency to steal. Accordingly, the claim was in relation to an excluded condition and could not succeed.
The case demonstrates the fine line that exists where the manifestation of an impairment occurs in a way which could be classed as an excluded condition. Where the foundation of the complaint is an excluded condition, the individual will lose protection against disability discrimination.
It is established that an impairment caused by an excluded condition could still amount to a protected disability, for example, depression arising from alcohol abuse may be a disability. On this point employers should exercise caution in ensuring that the reason for dismissing an employee is the excluded condition (stealing), and not the underlying medical condition (PTSD).
Implied terms and long term disability
In Awan v ICTS UK Limited it was found that a tribunal was wrong to rule that the employer had not breached an implied term of the contract of employment when dismissing an employee who was entitled to long term disability benefit.
Contracts may include express or implied terms. Unsurprisingly, express terms are those that have been specifically agreed by the parties, usually in writing. Terms may also be implied so that the contract reflects the presumed intention of the parties.
Traditionally terms may be implied by custom, conduct, to make the contract operate properly, or where the term to be implied was so obvious that it went without saying that it was what the parties intended. Implied terms are interpreted by reference to a reasonable individual in the position of the parties at the time the contract was entered into, with the relevant background facts. Implied terms cannot contradict express terms.
Mr Awan was employed by American Airlines (‘AA’) in 1992. His contract contained contractual sick pay, long-term disability benefits, and the right for his employer to dismiss on notice. In 2012 he was signed off work, suffering from depression and a couple of months later his employment contract was transferred to ICTS UK Limited (‘ICTS’). Following the transfer, ICTS changed insurance provider, which resulted in cover being denied in respect of Mr Awan’s long-term disability payments. ICTS opted to pay this for a time, until in 2014 it terminated Mr Awan’s employment on grounds of capability.
Mr Awan brought his claim on grounds of unfair dismissal and unlawful discrimination. It was not disputed that he was disabled, nor that his dismissal arose as a result of that disability.
Decision and comment
The EAT reversed the decision of the tribunal, which had found that ICTS had acted reasonably, and that the dismissal was a proportionate means of achieving a legitimate aim.
The EAT found that there was an implied term which operated to limit the express contractual right to terminate on notice, where doing so would frustrate the contractual entitlement to long-term disability benefits. ICTS had dismissed Mr Awan because he was on long term sickness absence, and in so doing had denied Mr Awan the precise benefits that the contract had intended to provide.
The case highlights that employers ought to be wary of dismissing employees who are claiming contractual long term disability benefits. While encountered less frequently in practice, where an employer intends to grant such benefits consider the following:
- Incorporate the relevant insurance policy into the employment contract to limit the employer’s obligation to continue payments in the event that the policy stops, or reduces, pay outs.
- If there are limitations in the policy these should be brought to the employee’s attention and also incorporated.
- Finally, consider including a right to terminate on grounds of incapacity. Of course, it remains to be seen whether such a clause would be enforceable in light of Awan.
Worker status: the dividing line becomes clearer
Worker status is a subject which crops up with such regularity that we suspect it will elicit the occasional groan. We will keep these comments brief.
The general zeitgeist of the Employment Tribunals and EAT appears to be to broaden the definition of ‘worker’ to include as many individuals as possible. In this context, the recent finding that Deliveroo riders were not workers for the purpose of collective bargaining arrangements might appear somewhat surprising.
However, it appears that a decisive factor in the finding was the right to provide a substitute who could be engaged directly by the rider without the need for approval by Deliveroo, and the fact that this right had actually been utilised. In light of recent decisions in Pimlico Plumbers v Smith and Addison-Lee v Lange, both of which emphasised the obligation of personal service, it could be that such an unfettered right of substitution is where the boundary of worker and contractor status will lie.
As always, watch this space for further developments.
If you require any further information on the above developments please do not hesitate to get in contact with a member of the Employment Team.