United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MRS W OUTHWAITE (of Counsel) Instructed by: Thales Corporate Services Ltd Legal Department Richmond Court Fleet Hampshire GU13 8BU
For the Respondent	No appearance or representation by or on behalf of the Respondent


 


MR RECORDER LANGSTAFF QC

1. We have before us an appeal from the Employment Tribunal sitting at London North, which gave Extended Reasons for its Decision on 28 April 2000. The Tribunal decided that the employee Respondent had been unfairly dismissed. It ordered re-engagement, but provided for contributory fault to be assessed at 30%. From that Decision the Respondent employer appeals.
2. The Decision throws up the approach of an Employment Tribunal to a question of unfair dismissal. The hearing took place on 10 March 2000 before the Court of Appeal had had the opportunity, which it took in the case of Foley -v- The Post Office to review the decision which had, at that stage, been published in Haddon -v- Van den Bergh Foods Ltd [1999] IRLR 672.
3. The Tribunal were considering a case in which the employee had tested positive for drugs. She took the drug test on 12 August 1999. She did so because having been absent from work for a little while and then working in a clerical capacity she wished to return to her job as a telecommunications technician. That job involved her going trackside. That is, she would have to work on railway tracks, often without safety cover, doing work which was safety critical, the accuracy and reliability of which might affect very considerable numbers of the travelling public. For that reason the Respondent had a policy, which it applied generally, that anyone who tested positive would normally expect to be dismissed from post. The policy did not, as perhaps it might have done, appear to allow for a sideways move of any employee into a post which was not safety critical.
4. On 25 August 1999, there was a disciplinary hearing by her employer. She sought to argue that her positive test had been caused because she had passively inhaled smoke containing the residue of cannabis from her boyfriend's smoking. When that appeared not to accord with medical evidence which the Respondent sought, because the level of cannabis residue in the bloodstream was too high, she argued and produced some witnesses to support a case that her food must have been spiked by her boyfriend who, on the available evidence, had what might (I hope not inappropriately) be summarised as a malicious streak. The disciplinary hearing resulted in the employee's dismissal.
5. The Tribunal recognised that that dismissal was by reason of her conduct. It asked, therefore, in accordance with well established principles, whether the employer had an honest belief in the misconduct based on reasonable grounds after a reasonable investigation. Though with some hesitation as to the latter, it found the test satisfied by the employer. All that remained was the question of penalty.
6. The approach which the Tribunal took was this: at paragraph 23, and I quote, it said:

"It should be noted …..that the [employee] Applicant was highly aware of the [employers'] Respondents' attitude towards being under the influence of drugs, indeed …….it was drummed into all its employees repeatedly and in many different ways. The Tribunal considered the prudence of [the employee's] behaviour. She was concerned about the middle of July as to the potential effects of her boyfriend's smoking cannabis and yet she did not report that to a member of management until 6 August and that was after the date had been fixed for her screening to take place on 12 August. At the end of the day the issues were very finely balanced. The Tribunal is encouraged by the decision Haden"

[and by that the Tribunal meant Haddon -v- Van den Bergh we have no doubt ]

"not to shrink from substituting its own judgment for that of the employer when it is satisfied that the employers judgment was in all the circumstances not a reasonable one. The Tribunal asked itself would we have done and then went on to test its view by asking whether what we would have done accords with what our industrial experience tells us that a reasonable employer would have done."

The Tribunal then went on to consider a number of significant factors which persuaded it that the balance it had described as very fine resulted in a finding in favour of the employee to the effect that the sanction of dismissal was, in these circumstances, too draconian, and that the blanket application of the drugs policy was, in this particular case, however fair it might be in general, unfair.

7. That approach is, Mrs Outhwaite submits and we agree, contrary to the guidance given by the Court of Appeal (binding on us) in the case of Foley -v- The Post Office. In that case, it is said in the judgment of Mummery LJ, in paragraph 51 that:

"51. It was also made clear in Iceland Frozen Foods Ltd v Jones [1983] ICR 17 at 24-25 that the members of the tribunal must not simply consider whether they personally think that the dismissal is fair and they must not substitute their decision as to what was the right course to adopt for that of the employer. Their proper function is to determine whether the decision to dismiss the employee fell within the band of reasonable responses 'which a reasonable employer might have adopted'.

53. In one sense it is true that, if the application of that approach leads the members of the tribunal to conclude that the dismissal was unfair, they are in effect substituting their judgment for that of the employer. But that process must always be conducted by reference to the objective standards of the hypothetical reasonable employer which are imported by the statutory references to 'reasonably or unreasonably' and not by reference to their own subjective views of what they would in fact have done as an employer in the same circumstances. In other words, although the members of the tribunal can substitute their decision for that of the employer, that decision must not be reached by a process of substituting themselves for the employer and forming an opinion of what they would have done had they been the employer, which they were not."

8. That approach is based on the wording of section 98 of the Employment Rights Act 1996 which it is unnecessary for present purposes to quote in full. In this case when the Tribunal said, in the passage we have just quoted as follows:

"The Tribunal asked itself [what] would we have done and then went on to test its view by asking whether what we would have done accords with what our industrial experience tells us that a reasonable employer would have done."

It appears to us, probably, to have been conducting the very exercise which Mummery LJ indicated that an Employment Tribunal must not do. It was approaching the question of reasonableness and fairness from the standpoint of its own decision rather than by asking whether the decisions made by the employer fell within the scope of that which a reasonable employer might do. Accordingly, we think that there is, in the light of the clarification of the law which Foley -v- The Post Office effects, no answer to the basis of this appeal.

9. We should add that we have had no answer because the Respondent employee has not appeared before us. We had no advance notice that this would occur. It appears that the last communication that was on her behalf to this Tribunal, was in August 2001 when a letter was received from her solicitor. Thereafter, correspondence was conducted with her direct from this Tribunal, but with no answering letter. A phone call was made earlier on today in order to see whether contact might be made. It has not been This case nonetheless was heard at the tag end of the afternoon, in the possibility that she might, in the mean time, make some contact, which she has not done. Accordingly, we thought it right to exercise our discretion to proceed in her absence.
10. The fact that we have decided that there is here no answer to the appeal does not itself resolve the question as to what consequence must follow. This is the area that we have found much more difficult to resolve. We have to ask whether this is one of those cases which we may ourselves resolve, or whether it requires further consideration following remission to an Employment Tribunal.
11. We note the force of the submissions made to us by Mrs Outhwaite that the ordinary member of the public would consider it odd that an employer might not be acting reasonably in dismissing someone who had tested positive to drugs, particularly in an industry in which safety, always critical, has recently had the importance of safety, sadly, emphasised again and again. She has pointed out that the explanation which was forthcoming at the disciplinary hearing began formulation only after it was known that a drugs test was imminent. She has sought to demonstrate, by reference to the Employment Tribunal's own investigation of the facts that the employee's behaviour may itself have been wanting, and notes that the Employment Tribunal found that she was nearly one third to blame for her own dismissal. That blame indicates a degree of blame for the dismissal itself, as opposed to some lesser penalty
12. We, for our part, would have great hesitation in thinking that a policy, such as that which the employer had here should, in every circumstance, automatically be applied and that indeed a reasonable employer would so act. However, we find it difficult to think, having taken account of all the facts and matters recited in the Tribunal's Decision, that a decision to dismiss would be outside the band of responses which a reasonable employer might have to the particular circumstances. What hesitation we might have in making that decision for ourselves is, however, in this case we think resolved by the way in which the Tribunal itself approached the question.
13. In observing, as it did in the passage we have quoted, that at the end of the day the issues were very finely balanced, the Tribunal was, in effect, saying that any Employment Tribunal in its position, as it saw it, might entirely reasonably uphold the dismissal as fair and equally reasonably, indict it as unfair, albeit with some contributory faults. If that is a fair way of reading the Employment Tribunal's Decision, and we can see that the wording permits of little other alternatives, then we think that the Tribunal has effectively itself answered the question which we have to address. If the fault was putting itself into the employer's position, the Tribunal was in effect saying that an employer would be entirely reasonable either in dismissing, or in imposing a penalty short of dismissal.
14. In any event, as we have indicated, although with some hesitation, we should for ourselves have found dismissal to be within the scope of that which a reasonable employer might do in response to these circumstances and accordingly, we propose to exercise our discretion to substitute a finding that this dismissal was not unfair.
15. We should observe that we were also urged to take that decision upon the basis, as Mrs Outhwaite put it, that it would be in line with the overriding objective, or the analogous provisions that relate to Employment Tribunals, for us to take a course which would be saving costs proportionate to the issues and saving the resources of a Tribunal. Whereas we think there may be some force in this argument, we have not taken account of it in reaching our conclusion. We think those issues are better explored in some other case where the consequences may be looked at rather more fully. We note the argument merely to indicate that we have not, in reaching our conclusion, been influenced by it. It is unnecessary to deal with it further.
16. For those reasons this appeal will be allowed and the finding of the Employment Tribunal reversed. We should add that this implies no criticism whatsoever of the Employment Tribunal, whose approach in all other respects has been recognised by Mrs Outhwaite, on behalf of the Respondent, as impeccable. It is merely that a change in the apparent law has overtaken the Decision.
17. We are faced with an application on behalf of the successful Appellant for costs. The sum of £1000 is asked for. The basis for the application is that in May 2001 the Appellant's solicitors contacted the Respondent's solicitors who, in correspondence, recognised the hopelessness of the Haddon and Foley point which has been dispositive of the merits of the appeal. Indeed, the Appellant wrote to the Respondent herself on 7 August 2001 saying that an application for a Costs Order would be made in the event of success, which the Appellant expected to be inevitable.
18. We are going to decline that application. We do so for these reasons. Had the matter simply been one which rested upon the correctness of the Tribunal's approach in the light of the Foley decision we would have sympathy with it. But what was most troubling to us was the question of what the remedy in this Tribunal should be. As I have indicated, we did not find it easy to decide whether this Tribunal should exercise its powers to decide the matters or whether it should, properly, be remitted to the Employment Tribunal. In part, we can well understand any unrepresented litigant taking the view that there was a good chance of persuading this Tribunal to remit the case, particularly in light of the factors set out in the Employment Tribunal Decision as to which they confessed a fine balance might be drawn.
19. We think, therefore, that this case could never have been resolved on paper. It would have required advocacy. That would necessarily have involved the attendance of a representative on behalf of the successful Appellant and we think that much the same costs were likely to have been engendered as in fact have been. Accordingly, we think that the application had little substance, even though we have indicated some sympathy with aspects of it.