Employment Law E-Bulletin

Cases: Dec 07

Focus DIY v Nicholson EAT 225/94

During a work party Ms Nicholson, a manager and the most senior member of staff present at the function, was observed to be smoking cannabis by her junior colleagues.

A fellow member of staff later complained about the behaviour of Ms Nicholson and following an investigation during which Ms Nicholson admitted the drug use. Ms Nicholson was dismissed despite the fact that the party did not take place on work premises and that the employer had no written policy on the use of drugs outside the workplace.

The Employment Tribunal initially held that the dismissal was unfair in that insufficient investigation had taken place prior to dismissal.

However, the EAT held that the dismissal was within the band of reasonable responses in light of the fact that Ms Nicholson was a senior member of staff and junior members of staff were present when she smoked the cannabis. It was held that smoking cannabis at the party negatively affected Ms Nicholson’s ability to manage her staff and damaged the trust and confidence that her employer had in her.

Although in this instance the employer was able to dismiss without having any written policy on drugs, this is not often the case. When the use of drugs (or consumption of alcohol) is outside of work hours then the employer has to show that the action of the employee has an affect on the business of the employer. It would not normally be a fair dismissal if an employee was sacked for possession or use of cannabis outside of work time. However, this would depend on the facts of the situation.

It is important to note that allowing the consumption of drugs on your work premises is a criminal offence. It may also contravene health and safety laws but to be on the safe side make sure that you have a written drugs policy and that all staff are aware of it. Set down clear rules before any staff function and make it clear that the use of drugs will not be tolerated and will lead to disciplinary action. Encourage senior staff to set an example and make them aware that higher standards are expected of those in positions of authority.

Ardyne Scaffolding v Rennie EAT 688/93

In this case the employee and some colleagues left their work site at lunch time on the day before the Christmas holidays and went for some lunchtime drinks.

The employee returned to work rather the worse for wear many hours after he was due back from lunch. The employer sent him home. The employer did not inform the employee of his dismissal on the grounds of misconduct on his return from his liquid lunch, as (in the employer’s opinion) he was too drunk to take it in.

The employer intended to sack the employee when he had sobered up, and due to the time of year and the holidays they thought that it would be reasonable to dismiss the employee when he returned to work in the New Year. Unfortunately during the festive period gossip spread and the employee heard second-hand that he had been dismissed.

Both the Employment Tribunal and the EAT held that the dismissal had been unfair and that although the Employer had been entitled to wait until the employee was sober to dismiss him, they were not entitled to ignore proper procedure, despite the fact that everyone was on holiday.  However, the employee did see a significant reduction in his compensation in recognition of the contributory nature of his actions.

This might not have been a total victory for the employee but the case does highlight the importance of having clear guidance as to whether drinking at lunchtime is permitted. It is important that you consider the health and safety implications of allowing your staff to return to work after they have had a drink.  Be aware that drinking at lunchtime or early finishing on the last day before Christmas may have built up as a custom and practice at your workplace and you need to be aware of your staff’s expectations with regard to this and clarify matters.

As the above case shows, following a fair procedure is key, especially now, since the additional requirements of the statutory dispute resolution procedures are still in force.

Hart v Chief Constable of Derbyshire Constabulary EAT 0403/07

This recent case deals with the issue of what amounts to a ‘reasonable adjustment’ for a disabled employee.

This case importantly places a limit on the reasonable adjustments that the employer can be expected to make with regards to the standards/qualifications expected of employees.

In this case Ms Hart was a probationary constable who was unable to complete her police training due to a back problem (which amounted to a disability). The back problem prevented the employee from completing the training because she was physically unable to deal with confrontational situations.

The employee was dismissed as she did not meet the requirements for new constables under the Police Regulations 2003.  Prior to dismissal the employee was offered a staff job which she turned down.

The employee admitted at the ET that no ‘reasonable adjustment’ made would enable her to be a fully operational police constable.

The employee argued that there was no need for her to be able to complete all of the duties of a police officer and that if officers become disabled during the course of their employment (after they had qualified) then they are placed on restricted duties. The employee argued that the same concessions should be made for her.

The Chief Constable drew an analogy between the police force and qualification bodies and argued that if the qualification requirements were changed for Ms Hart then this would set a precedent for changing them for others, thus changing the standard expected of police officers.

The Tribunal accepted the distinction between qualified and probationary officers and held that the ability of the probationary officers to face confrontational situations was an irreducible minimum and that no adjustments should be required.

The EAT upheld this decision and stated that in performing duties analogous to a qualification body the Chief Constable was entitled to enforce the levels of competence that are required to qualify.

If you have disabled employees remember your duty to make reasonable adjustments to aid them in their work. However, as this case highlights if you are an organisation that sets down qualification standards for a workforce then lowering your standards will not necessarily be a reasonable adjustment that you would be expected to make.

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For further information on how these cases might affect you, contact the employment law team of Burnetts Solicitors on 01228 552222.

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Dec 2007