Appeal No. EAT/0873/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 2 July 2002

Before
HIS HONOUR JUDGE D M LEVY QC
MR B GIBBS
MISS S M WILSON CBE

SOUTH WEST TRAINS LTD	APPELLANT

MR S A IRELAND	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT	
For the Respondent	MR MATOVU
(of Counsel)
Instructed by:
Messrs Kennedys Solicitors
Longbow House
14-20 Chiswell Street
London EC1Y 4TW	

JUDGE D M LEVY QC

1	This is an appeal by South West Trains Ltd (‘the Appellant’) from a decision of a Tribunal sitting at London (South) on 15 January 2001 and 24 May 2001 (in Chambers).  The issue before the Tribunal was whether or not the Respondent to the appeal, Mr S A Ireland (‘the Respondent’), was unfairly dismissed.  The unanimous decision of the Tribunal was that he was.  From that the Appellant appealed by Notice of Appeal dated 17 July 2001.

2	The evidence, as found, was accepted by the Counsel who appears.  The Respondent has not appeared at the hearing of this appeal but he has telephoned to the Tribunal this morning informing the offices that he did not wish to attend.  He clearly knew of the appeal and it has proceeded in his absence.

3	The facts could not have been more stark:

4	The [Respondent] was employed from 15 February 1999 until 27 July 2000 as a trainman guard for South West Trains Ltd.  The position was one that was said to be safety critical.  The Applicant’s job was to collect fares and to be responsible for customers on the train and guard duties.

4	The Extended Reasons of the Tribunal go on to set out the policy of the Appellant as regards drugs.  We set out paragraphs 5 to 7 of the findings:

5	When the Applicant commenced work he was informed and understood the company drug policy.  The purpose of the policy is to take appropriate steps to ensure that no employee reports for duty, or tries to report, while unfit because of alcohol or drugs, or consumes or uses them whilst on duty.  Page 4 of the document sets out that “traces of some drugs can be detected days and even weeks after use.  A trace of an illegal drug found during screening will lead to dismissal”.  The policy of the company was to automatically dismiss for any traces of illegal drugs found in body samples, usually urine, taken from employees, and in the case of alcohol if 80mg or more per 100mlts of alcohol is detected in the blood stream (or equivalent in urine or breath).
6	Along with other employees the Applicant had been randomly sampled for drugs during the course of his employment from time to time and on each occasion had tested negative.  He had been named “Employee of the Month” at the depot where he had worked in Woking in July 2000 and was an exemplary employee.
7	Acting on information received from a police contract, Mr Peakall (Operations Manager for Woking Division) arranged for the Applicant to be tested for drugs.  The Respondent organisation had heard a rumour that the house where the Applicant lived and its occupants were under surveillance concerning drugs, although the details were not known.  The Applicant consented to the urine sample which took place on 19 June 2000.  He was not given advance warning of the test, the representatives of the testing unit arrived in his workplace unannounced.  On 26 June 2000 the Applicant was told the drug test had been positive.  He expressed disbelief and was suspended from work.  He was given a certificate of analysis that showed he had traces of cannabis and benzodiazepines in the sample.

5	In fact, the Tribunal had before it a certificate of analysis which did not show just that he had traces of cannabis and benzodiazepines in the sample.  They were shown a certificate of analysis which showed that the tests were positive for both of those drugs and they were also shown the document (which was page 21 of the bundle below), shows the date it was collected was 19 June, the date it was received was 19 June and the date of the report was 23 June.  They also had Medical Officer’s report (which was page 22 of the bundle below) which showed that he was:

Examination Conclusion:
Unfit [for work]
Remarks (including current medical limitations – to be summarised for each exam):
Positive for cause drug screen

6	There was a disciplinary hearing followed by an appeal.  The Tribunal found both of those were fair.  At both hearings the Appellant made a claim that:

9	“he had not knowingly taken drugs and his food had been ‘spiked’.  At the appeal the Applicant brought a witness who said he had placed drugs in the Applicant’s food.  Mr Peakall did not believe the witness nor the explanation.  Mr Peakall believed that if an employee had been found to have any traces of illegal drugs in the blood stream, the employee was liable for dismissal.  The only exception would be if management believed that they perhaps had not knowingly been taken.”

7	The Tribunal was referred by Counsel that appeared for both sides to the recent case of Foley v Post Office and HSBC Bank Plc v Madden [2000] ICR 1283.  The Tribunal found that:

10	“It was for an employer to make the decision, not the Tribunal, and the Respondent had established an honest belief on reasonable grounds of the misconduct of the Applicant and the decision to dismiss was a reasonable one, in accordance with its statutory provisions.”

Those were submissions made on behalf of the Appellant (the Respondent below).  In our judgment, on the facts as found, they were proper submissions to be made.

8	The Tribunal referred in paragraph 19 to the decision in Foley in these words:

19	“In those cases [that is Foley and HSBC in that non appeal] the BHS v Burchell test was reaffirmed, a test which is relevant both as to the reasons put forward for dismissal and the reasonableness of the decision to dismiss and compromises three parts: an employer must have a genuine belief in the employee’s guilt, based on reasonable grounds, following a reasonable investigation.  The Employment Tribunal hearing is not to be a re-hearing of the management’s decision to dismiss: the task for the Tribunal is to determine whether it was within the range of reasonable responses for the employer to have dismissed the particular employee.  The function of the Tribunal is to decide whether the investigation was reasonable and the decision to dismiss a reasonable response to the facts as reasonably found by the employer.”

9	Notwithstanding, addressing itself on the test correctly, the Tribunal reached a decision which, with respect, in our judgment, was wrong:

20	“The Tribunal conclude that the Respondent genuinely believed there were traces of illegal drugs – namely benzodiazepine and cannabis in the Applicant’s bloodstream and that they were there because the Applicant had knowingly taken drugs.  The Respondent was entitled not to believe the Applicant’s explanation as how the traces of drugs came into his system.

10	So far so good.  In paragraph 22 the Tribunal seems to have misled itself. It says: 

22	“The Tribunal has reminded itself that conduct in the employment context refers to conduct of such a nature whether done in the course of employment, or outside it, that reflects in some way upon the employer/employee relationship.  Knowingly taking illegal drugs, although wide-spread, constitutes a criminal offence.  Criminal offences committed outside employment are dealt with in the ACAS Code of Practice, paragraph 15(c) which advised that it is not to be treated as an automatic reason for dismissal but regard must be had to the relevance of the criminal offence to an individual’s duties.  It is also to be pointed out in this case that the Applicant has never been interviewed, charged or arrested in connection with the surveillance being carried out by the police that was reported to his employer and neither does he have any criminal record of any description.”

11	The ACAS Code is as maybe.  The facts are that this Respondent was examined on the premises and the results which we have indicated.  The reference to the ACAS Code of Practice, in our judgment, has no part to play in the dealings of an Employment Tribunal in the context of this case.

12	The Tribunal, at paragraph 23 reads:

23	“The Tribunal have also reminded itself of the purpose of disciplinary rules in general and the disciplinary procedure of this particular employer”.

Further reference to the ACAS Code of Practice:

The Tribunal find that the Alcohol and Drugs Policy of the Respondent organisation had, as its main point (page 2 of the Policy) to ensure that no employee reports to duty, or tries to report, while unfit because of alcohol or drugs , or consumes them while on duty.  There was no dispute in this case that the Respondent had, in accordance with the ACAS Code of Practice, made every effort to ensure that the employees knew and understood the rules and were made aware of the likely consequence of breaking the rules.
24	The policy itself reminded staff that a trace of an illegal drug found during screening would lead to dismissal and that traces of some drugs can be detected days and even weeks after use.
25	Drawing the various threads together, the Tribunal find that the decision to dismiss the Applicant on the basis of his positive test for drugs was, in the circumstances of this particular case, unreasonable, and the dismissal was unfair.  The reason why the Tribunal reached this decision is because of the lack of any evidence or link between the substances in the Applicant’s bloodstream and the ability for him to perform his job safely and satisfactorily.  We accept the Respondent’s evidence that illicit drugs remain in the bloodstream long after they have had an effect on the individual taking them.  The aim and purpose of the drugs Policy is not to do with the moral standpoint of the employer on drugs generally, but simply to ensure the safe performance by the employees of their duties.  Unlike the provisions concerning alcohol, no assessment is made of the safe or unsafe limit of particular drugs within the bloodstream and their effect on performance.”

13	There, with very great respect to an experienced Tribunal, they had ignored all the clear evidence before them that the Respondent had been certified as unfit for duty by a medical practitioner.

14	In our judgment this is not a decision which can stand.  What the Tribunal seems to have done is exactly that which they are directed not to do in Foley.  Its own decision has been submitted for that of the employer.  In our judgment the Respondent’s decision was a reasonable one to be taken in the circumstances of the case and the Employment Tribunal should not have interfered with it.

15	In these circumstances we allow this appeal and substitute for the decision below the decision that the Respondent was not unfairly dismissed.  We would thank Mr Matovu for his assistance today.