Thread by @JasonBraier

1/Renewi v Pamment: a truly landmark moment for the EAT in that it's @MichaelFordQC's 1st judgment (I think I'm right in saying that). I look forward to @thebigbogg's analysis of this seminal unfair dismissal substitution/Polkey/contrib appeal.

assets.publishing.service.gov.uk/media/6177df4a…
#ukemplaw

2/ P was a recycling team leader. Part of the recycling team's role was to deliver recycling bags by van & to empty large bin banks using a 7.5t lorry. P led the team doing both types of work though had no 7.5t lorry licence himself.

3/ The R had a policy on drug use with clear rules on substance abuse as well as supporting those with drug problems. It included use of illegal drugs as drug abuse & stated that working under the influence of drugs was unacceptable. The R had a screening/testing programme.

4/ Whilst the policy anticipated sometimes drug misuse might be treated by the R as a health problem, the policy made clear that reporting for work under the influence was classed as a conduct issue.

5/ A wellbeing policy treated substance abuse as a rehab issue but also warned of disciplinary action for gross misconduct on discovery of substance misuse. This was consistent with the disciplinary policy. The driving policy said driving under the influence wouldn't be tolerated

6/ In a random urine test, P tested positive for cannabis & morphine, the latter being consistent with P's declared medication for back pain. On investigation, P said a friend advised to smoke cannabis for his back pain & he'd done so earlier that week.

7/ P was suspended & repeated the same account at a disciplinary hearing. He said he'd let himself & the team down, only drove when nobody else was available & that he'd do nothing intentionally to damage the R's reputation. He hadn't touched cannabis since the incident.

8/ The disciplinary officer asked HR what happened to others who failed drugs tests. She said all 7 were dismissed or resigned. P was then summarily dismissed for gross misconduct and gross incapability through loss of trust & confidence in P's ability to perform his job.

9/ P appealed on the basis of lack of proper investigation or consideration of his long service, & said he'd not been under the influence at work. He said he could have been given a warning. The appeal was dismissed.

10/ The ET found as a fact P wasn't under the influence & criticised some aspects of the testing regime. The EJ also found it wasn't P's job to drive a vehicle, his role wasn't safety critical & there wasn't evidence his abilities would be affecting by cannabis.

11/ The EJ also criticised the dismissal officer for failing to consider mitigating factors, the reliance on HR's guidance on results in other drug failure cases & relatedly the treatment of a failed drugs test as inevitably leading to a gross misconduct finding.

12/ The EJ criticised the appeal officer's decision, finding P wasn't required to drive a van, & criticised the appeal officer for lacking realism in taking into account the cannabis wasn't prescribed. The EJ also found the cannabis hadn't interfered with P's functioning.

13/ The EJ found the dismissal unfair for the reasons set out in the excerpt below. Perhaps most surprising of all, the EJ found there should be no Polkey or contributory conduct reduction.

14/ The R appealed on 6 grounds. Unsurprisingly 2 of them were complaints of substitution - substitution of findings of fact & in reaching judgment on the fairness of the dismissal. The EAT set out the standard authorities, Orr, Newbound, Small, Fuller.

15/ It will come as little surprise that the EAT upheld the substitution appeal. Rather than concentrate on what evidence was before the employer, the EJ made his own factual findings on the impact of cannabis on P's performance & his own finding that P didn't drive in his role.

16/ The EAT also found the EJ wrong to criticise the reliance on HR's comparator info because the HR person herself lacked objectivity towards P. The info provided when asked was correct - it wasn't a Jhuti situation therefore where info from a tainted source should be ignored.

17/ On substitution re mitigation, the EAT was less sympathetic to the R. P had significant mitigating factors in his favour & as per Newbound length of service & other mitigating factors were legitimate for the ET to consider in determining reasonableness of sanction.

18/ Whilst it was understandable that the EJ saw the decision as harsh in the circumstances, he'd taken a wrong approach to determining the fairness of the dismissal & allowed his subjective reasons to infect his decision.

19/ Moving on to Polkey, the EJ had declined to make a reduction in light of it having been unfair for the non-objective HR person to have the dismissing officer's ear. The EJ hadn't, in that context, considered what would have happened had she not had his ear.

20/ On contributory conduct, the EJ relied on the fact that illegality of substance alone doesn't lead to dismissal in suitable cases under the R's policy & noted his findings on lack of evidence on impact of the drugs on performance.

21/ The EAT noted the EJ failed to consider (as per Nelson) whether P's conduct was culpable or blameworthy, but found it didn't cause P's dismissal. The EJ relied on that for both s.123(6) & s.122(2) even though it's not part of the s.122(2) test.

22/ In any event, the EJ erred under s.123(6) in considering whether the R, acting properly would've dismissed P, whereas the question is in fact whether P's blameworthy or culpable conduct caused or contributed to the dismissal.

23/ A finding that the cannabis didn't impact P's performance might be relevant to what reduction it was just & equitable to make, but not whether s.123(6) was engaged at all. The EAT dismissed a perversity challenge & remitted the matter to a different EJ.