United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON
For the Respondents	MR T RYAN (of Counsel) Messrs Kennedys Solicitors Longbow House 14-20 Chiswell Street London EC1Y 4TY


 


JUDGE PETER CLARK: This is an appeal by the Applicant employee, Mr Roberts, against a unanimous decision of the Liverpool Industrial Tribunal sitting on 20 March 1996, dismissing his complaint of unfair dismissal against the Respondent employer. Extended Reasons for that decision are dated 20 May 1996.

The short facts as found by the Industrial Tribunal are these. The Respondent operated an alcohol and drugs policy which involved random testing of its staff. That was a policy, the Industrial Tribunal found, which was of great importance so far as safety in the Railway network is concerned.

If an employee tested positive, the policy made clear that he will be dismissed.

The Appellant was at the material time employed as a Senior Technician/Team Leader at Chester. He had a good employment record.

On 29 March 1995 he tested positive on taking a random drugs test.

On 11 April 1995 a disciplinary hearing was held by Mr Malone. The Appellant attended with his Trade Union representative, Mr Carter. He was summarily dismissed. He exercised his right of internal appeal and that appeal was heard by Mr Morris on 28 April 1995. Again the Appellant appeared and this time was represented by Mr Warnock-Smith. His appeal was dismissed.

His case was that, whilst accepting that he had failed the test, in other words he had tested positive, this was due to the passive inhalation of cannabis smoked by his brother at home, and not as a result of his own active smoking. In this appeal Mr Roberts takes three points. We shall deal with each in turn.

First he submits that the Industrial Tribunal decision was perverse in finding that the Respondent had carried out a reasonable investigation before deciding to dismiss and in upholding the dismissal decision on appeal, where it had not received the results of independent testing carried out on the specimen provided at the behest of the Appellant. He relied, by analogy, on the decision of this Appeal Tribunal in East Lindsey District Council v Daubney [1977] ICR 566 a case concerned with the need for employers to give an employee, whom they are considering dismissing on grounds of ill-health, an opportunity to provide his own expert medical opinion as to the prognosis for a return to work.

Assuming that the present case is truly analogous and Mr Ryan for the Respondents submits that it is not, the Appellant's difficulty lies in the way in which the question of his own test arose. It was raised by his representative, Mr Warnock-Smith at the appeal hearing held on 28 April, and the matter was left in this way.

Mr Morris noted the request for another test and that an appointment would be made so that the testing procedure could be explained and the result sent away for an independent test. That was noted by Mr Warnock-Smith and the Appellant and Mr Warnock-Smith went on to say that, if the test proved negative then he would like to reserve the right to a review of the case.

In fact a further test was carried out by Mrs D.P. Felix, on behalf of the Appellant, and her statement which was before the Industrial Tribunal records the result as being positive. In those circumstances, the basis on which Mr Warnock-Smith sought a review was not triggered; that is to say the findings were not negative.

The Appellant says before us that he was let down by his Trade Union representative. We do not enquire into that, but of course, the employer takes the employee on the basis of the representations made on his behalf. It seems to us that, in all the circumstances on the evidence before the Industrial Tribunal, that Tribunal was entitled to conclude that before the disciplinary procedure terminated the employers had carried out a reasonable investigation including an enquiry by Mr Morris of the Respondent's doctor as to whether the results could indicate that the tests results were obtained as a result of passive rather than active smoking. The doctor answered that question in the negative.

The second point taken is that the Industrial Tribunal was wrong to exclude oral expert evidence by Mrs Felix on behalf of the Appellant and by an equivalent expert Dr Wells whom the Respondent had available to give evidence if the Appellant was allowed to call his expert. The Industrial Tribunal deal with that application at paragraph 11 of the Reasons and they ruled that no such oral evidence would be admitted. Their reason for doing so was principally this. They reminded themselves that it was not for them to substitute their view of what should have been done for the views of the employer and therefore, it was not necessary or, indeed desirable for them to embark on an exercise which would have involved making findings of fact as between the rival opinions of the experts.

We accept Mr Ryan's submission that for the Appellant to succeed on this ground of his appeal he must show that that ruling was perverse and we are quite unable to say that it was. It seems to us that the Tribunal correctly directed themselves as to the issues which they had to decide and that in deciding those issues it was not necessary to hear such oral evidence.

The third point taken is this; that what happened here was that Mr Malone and then Mr Morris reached their decisions simply on the basis of a blanket policy laid down by the Respondent that anyone who was tested positive would be dismissed and he relies on the decision of this Appeal Tribunal in Taylor v Parsons Peebles NEI Bruce Peebles [1981] IRLR 119, for the proposition that it is for the employer to decide each case on its individual facts rather than simply to apply a blanket policy when considering dismissal. We do not depart from the principles set out in that case, but we are satisfied that the Tribunal was entitled to find, on the evidence, that both Malone and Morris were sympathetic to the Appellant. They regarded his case as one outside the usual run; that they did not simply apply a blanket policy decision to dismiss but investigated the question of whether or not his positive test resulted from active or passive smoking.

Having considered and rejected the passive smoking case advanced by the Appellant, it seems to us that overall this was a procedure which the Industrial Tribunal were entitled to conclude was a reasonable one.

It follows, in our judgment, that the Appellant has failed to make out any error of law in this Tribunal's approach. Our jurisdiction is limited to correcting errors of law and accordingly, this appeal must be dismissed.

Finally, we should record that the Appellant applied to put in evidence before us certain additional documents not before the Industrial Tribunal. That application was opposed. Having considered the representations made by the Appellant we could see no good reason to make an exception to the general rule that we will not admit fresh documentary evidence on appeal. The reason for our ruling is simply this; it is not our function to retry the factual issues which were, or might have been, decided by the tribunal of fact, that is, the Industrial Tribunal.