Weekly blog: a cautionary tale of the importance of having and following procedures
The Precept team continues to grow, and I am delighted to introduce myself as the newest member of the team.
I’m Alex (superhero name to be confirmed soon I’m told!) and I’ve worked in HR and employment law since 2014.
It’s safe to say that my first two weeks have been a bit of a whirlwind and I have truly hit the ground running, getting to meet some of our lovely clients and flexing my employment law muscles (why yes that is a reference to the fact I love going the gym: check out my profile on our website Alex’s Profile )!
But I’m loving the work and the team (even when Emma does make us do some crazy things, which you will no doubt see in the next few weeks), and I can’t wait to continue my career in employment law here.
It seems the weekly blogs have slightly fallen by the wayside in Philip’s absence (although you have still been getting our awesome updates, just in different ways), but not to worry – he’s back from his honeymoon in New Zealand now and with me recently joining the team, it’s all hands (back) on deck!
So, I’ve been tasked with this week’s blog, and a recently reported case that caught my eye was of a rail worker being sacked after accidentally taking cocaine, who ended up winning an unfair dismissal claim – sounds bonkers right?!
Now I hear you ask, how do you “accidentally” take drugs?! That is a very good question. But it seems it can actually happen!
In the case of Glenholme v Network Rail Infrastructure Ltd (https://www.gov.uk/employment-tribunal-decisions/mr-p-glenholmes-v-network-rail-infrastructure-ltd-2602425-slash-2022), the employee in question had bought a herbal tea from a market stall in a packet with no label which, unbeknown to him, contained the raw or dried leaves of the coca plant – the plant from which cocaine is extracted, which meant that he ended up testing positive on a drug test for cocaine.
The employee was taking this tea to aid his digestion, something that his prescribed medication for his disability was causing him some trouble with and this tea seemed to ease the symptoms for him.
The employer had a strict policy on drug use which stated that any positive test for illegal substances would result in immediate suspension. This was particularly important for this specific employee because he worked in a safety critical role. The employee received 8 weeks’ notice of the upcoming periodic drug and alcohol screening test, which he then took and subsequently failed due to the tea.
It then took almost two years for the employer to be able to hold the disciplinary due to the ill health of the employee, and when it finally took place, he was sacked.
Due to errors made within the disciplinary process, the judge held that the dismissal was procedurally unfair, however, the employment judge was very critical of the employee and told him that he should have checked the ingredients of this tea, and that to not do so meant that he was entirely to blame for his own dismissal. The judge therefore went on to find that the decision to dismiss fell within the range of reasonable responses and due to the Claimant’s culpability the tribunal awarded him absolutely no compensation! This was because, the judge said that had it not been for a technicality in the dismissal process, the decision to dismiss would have been appropriate in any event (you’ve probably heard Precept talk about Polkey deductions before – well this is them in practice!)
Now… we don’t recommend that cases such as this make you start thinking that following your own procedures isn’t important where there is an obvious dismissal, rather the opposite, as the legal costs and management time needed for tribunals are by no means insignificant.
By having clear procedures in place and followed correctly, situations like this can be avoided.
It is important that managers and HR are properly trained and informed of the procedures they should follow – there’s no point in having a 5* policy written down if your managers don’t actually know what they’re doing with it. It becomes a bit pointless!
I happen to know that the team at Precept can help with all aspects of this, from drafting the policies, to coming in to train your teams and even offering support through disciplinary processes. If this is something you’re worried about, then get in touch today.
Oh, and in case you were wondering, the tea in question was called Mate Tea (the tea of the incas) so we’d strongly advise you giving that a miss!!