In the case Kuehne & Nagel Ltd v Cosgrove - Ms Cosgrove was employed as a Warehouse Operative. As a result of an anonymous tip-off she agreed to take a drug test. The test showed a positive result for cannabis. The company policy stated that a positive test for illegal substances would be classified as gross misconduct. Ms Cosgrove was suspended, invited to attend a disciplinary hearing and then dismissed. During the investigation it had not been clear if Ms Cosgrove was under the influence of cannabis at work but she admitted that she had consumed cannabis the previous weekend. Ms Cosgrove raised a claim for unfair dismissal.
Ms Cosgrove was successful at tribunal as she argued that the dismissal was unfair as there was no proof that she was under the influence of cannabis at work. Ms Cosgrove was awarded £7,865 in compensation. The Company appealed this decision. The EAT considered the facts of the case and in particular they noted that the company had a policy in place which stated that there was a zero tolerance policy on drugs. This policy was required as the company operate in a safety critical environment. Also the EAT considered the fact that (unlike alcohol) there is no test that can show if the employee was under the influence of cannabis at a particular time.
The EAT found that the employment tribunal had failed to apply the correct legal test to a claim of unfair dismissal and the dismissal was found to be fair.
For safety reasons some organisations must operate a zero tolerance policy in relation to substance misuse. This case shows that employers can still enforce these rules. The main lesson for employers is that they must have a clearly drafted policy on drug use, this must be communicated to staff and there must be clarity on how drug testing will be carried out.
If you need to review your Alcohol and Drug policy to ensure it meets your business needs please get in touch.