In Mr P Glenholmes v Network Rail Infrastructure Limited the claimant commenced employment with the respondent as an On Train Technician in July 2014. The claimant’s role related to track safety, and he in a health and safety critical role. The claimant’s line manager was Mr W-F.
The claimant was on prescribed medication for a disability. That medication caused him indigestion and he had been taking over the counter medication to alleviate the indigestion. However, in September 2020 the claimant purchased Inka Tea. He did not know what was in the tea, but it worked almost immediately to relieve his digestion issue. He continued to use the tea thereafter.
Having received 8 weeks’ prior notice, on 24 Sept 2020 the claimant was given a periodic drug and alcohol screening test. The result was that the claimant tested positive for benzoylecgonine, which is the metabolite of cocaine routinely looked for in urine to establish that cocaine had recently been used by the test subject.
The HR team gave guidance to Mr W-F that the claimant “should be suspended with immediate effect due to the failed D&A test”.
SS was appointed to investigate and invited the claimant to a meeting on 21 October.
The claimant provided a statement. The tribunal report said: “In this statement the claimant confirms that the most likely cause of his failed test was his ingestion of the ‘Inka Tea’ (sic) which he purchased from a market stall.
“The product did not include a list of ingredients. He said that having researched the product, he now understood that the tea contained cocaine and he says expressly: ‘Having the information and research which I now know, I would not have in good conscience bought the product or consumed it’.”
The process continued, with the claimant requesting a re-test of his urine sample – which subsequently confirmed the initial findings, and he was summarily dismissed.
Employment judge Martin Brewer said: “I am in no doubt that the claimant was entirely to blame for his dismissal. He deliberately drank tea from South America without knowing, and not researching prior to drinking it, what it contained.”
When it came to award compensation, EJ Brewer added: “In my judgement it is not just and equitable to award the claimant any compensation.”
He continued: “Even if I am wrong about that, in my judgement the claimant was wholly to blame for his dismissal and although there were procedural problems with how the case was dealt with by the respondent, leading as it did to the respondent’s concession that the dismissal was procedurally unfair, these are not so serious as to mean that the dismissal was also substantively unfair, and in my judgement it was not.
“In short, had the procedure been within the band of reasonable response the claimant would still have been dismissed, quite possibly sooner than was in fact the case. In that case I would reduce the compensation to nil for contributory conduct.”
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