The EAT considered whether it was fair to dismiss a worker who tested positive for cannabis, having taken it to relieve his back pain.
In January 2020 the claimant had returned from a period of 6-7 months off work with severe back pain. In March 2020 a random drugs test found he was positive for cannabis. The claimant said he had very much wanted to return to work and had been trying the cannabis (suggested by a friend) in the evening to help with his back pain. He did not believe it impaired his performance at work. The employer summarily dismissed him for ‘gross misconduct’.
The employment tribunal upheld his claim for unfair dismissal. The EAT overturned the tribunal decision but did not hold the dismissal to be fair – it sent the case back to be reconsidered. Among other things the tribunal should not have substituted its own finding that his performance was unaffected by the cannabis, but could have considered whether the employer’s decision on this was reasonable.
In deciding whether the employer’s decision to dismiss fell within the band of reasonable responses, the tribunal had been entitled to take account of its finding that the employer took no or inadequate account of the ‘very significant’ mitigating factors in this case, and had applied an unwritten policy of dismissing all those who failed a drugs test.
The case was Renewi UK v Pammet, www.bailii.org/uk/cases/UKEAT/2021/2021-000584.html