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Appeal allowed in unfair dismissal case by recycling worker with bad back who tested positive for cannabis

Makbool Javaid, Partner - Simons Muirhead & Burton

In the case of C Pamment v Renewi UK Services Ltd, the Employment Tribunal held that the dismissal of an employee suffering from acute back pain for taking cannabis (to treat that pain) was unfair. Mr Pamment became a full-time employee of Renewi UK Services who operated a policy that anyone who failed a drugs test would be dismissed if they did not resign.

In June 2019 Mr Pamment suffered a back injury and he started to suffer from chronic and acute back pain; he was subsequently signed off work as medically unfit to work. From December 2019 onwards Mr Pamment on occasion took cannabis to help with the pain, and to help him to sleep.

On 6 January 2020 Mr Pamment returned to work. In March 2020 Mr Pamment undertook a random drugs test at work and he tested “non-negative” for cannabis. The Respondent summoned Mr Pamment to a disciplinary meeting on 30 March 2020 and he was summarily dismissed for gross misconduct on 1 April 2020, with the Respondent giving the reason for dismissal that he had tested “non-negative”.

The ET held that the Claimant was unfairly dismissed because, among other matters, the Respondent paid no or insufficient regard to mitigating factors, it was not the Claimant’s job to drive a van, there was no impairment of the Claimant’s performance at work and the dismissing manager had obtained evidence about the treatment of comparable cases from an HR employee who was not wholly objective.

Renewi appealed. The EAT allowed the appeal stating that the ET had wrongly substituted its own findings in deciding that the cannabis did not affect Mr Pamment’s performance and it was not his job to drive a van, rather than focussing on the reasonableness of the employer’s belief about these matters.

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