Ms JD – described as a “highly qualified” professional driver who was licensed to operate vehicles at the airport – was said to have been drinking the night before she failed the test on the morning of June 26, 2021.
However, she denied telling her supervising manager MF that she had had a drink the night before and argued the reason for the failed tests was Listerine she had gargled with to take away the taste of antibiotics she had been taking to treat a kidney infection.
An employment judge said: “I have found that the claimant was unfairly dismissed for procedural reasons as at the date of the appeal. The appeal was unfair because the appeal officer did not keep an open mind and he did not address the claimant’s points of appeal.
“I am satisfied that had the appeal manager addressed his mind, openly, to the points raised by the claimant, there was a small possibility that he would have allowed the appeal.
“I have found that the claimant did consume alcohol leading to the positive tests and I have found that there were no exceptional circumstances to take into account. I therefore find that the likely conclusion of a fair procedure would still have been the claimant’s dismissal, but this is not a certainty.
“Therefore, I conclude that there was a 75 per cent chance that had a full and fair procedure been followed, she would have been dismissed in any event.”
However, National Express “unreasonably failed to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures 2015”.
A basic award of £1,016.82 and a compensatory award amounting to £2,664.70 has been awarded to Ms JD.
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