Unfair Dismissal

Is it fair to dismiss an employee in the transport industry who fails a drugs test? Not always, said the employment tribunal ('ET') recently in Ball v First Essex Buses.

A bus driver was dismissed for failing a drugs test. He had been employed for 20 years with an unblemished disciplinary record. He was diabetic. He did finger prick blood tests throughout the day and would lick his fingers to stop the bleeding. His bus route took in lots of students and he handled lots of cash. He argued that his drug test had been contaminated by cocaine on bank notes. He also argued that the test was conducted without gloves or prior handwashing and so was open to contamination. He provided his own drug tests which tested negative for cocaine.

The ET ound that the employer’s decision to dismiss was not within the range of reasonable responses. The employer made mistakes about their own drug and alcohol testing policy during the dismissal process. They failed to follow their own procedures, which said they would take an employee’s own evidence into account. There were also flaws in the investigation. Given the issues of contamination and the employee’s own negative tests, the employer should have undertaken additional investigation.

It might seem surprising that an employee in the transport sector who fails a drugs test can win an unfair dismissal case. Employers should not take drug test results as gospel especially in the face of conflicting evidence and contamination issues. Employers should also ensure that managers know the detail of company procedures and follow them religiously.

Redundancy Trial Periods

Is it unfair not to offer a trial period for a more junior role even if the employee did not complain at the time? Yes, if it is a contractual right, said the employment appeal tribunal ('EAT') in George v London Borough of Brent. Trial periods allow an employee to try out a new role whilst being able to fall back on the redundancy package if the new role does not work out.

In this case, the employee was made redundant. She was offered a more junior role, but the employer refused to offer a trial period. As a result, the employee rejected the offer, was dismissed and then claimed unfair dismissal. The employer’s own contractual policy said that the employee had a contractual right to a four-week trial period. They admitted they were in breach of contract not offering one. The important question was whether the denial of the trial period made the dismissal unfair.

The EAT said that a failure to offer a contractual trial period was likely to make a dismissal unfair. They sent the case back to a new ET panel to decide about the fairness of dismissal.

This is another case which shows how important it is for employers to follow their own procedures in dismissal cases. Failure to do so might render an otherwise fair dismissal unfair.

Part-time Workers’ Pay

Is it unfair to pay an employee 50 % of full-time pay for being on duty for 53.5% of the time? Yes, the Court of Appeal ('CoA') said in British Airways v Pinaud, in a case which will affect around 600 similar claims pending against BA.

The employee worked part-time as cabin crew for BA. She had to be ‘available for work’ on 130 days per year, compared with 243 for a full-time employee. Of those days where cabin crew were ‘available to work’, the majority would be flying. The rest would be training days or ‘on call’ days (where employees might be called to fly at short notice). The employee brought a claim for discrimination based on her part-time status, because she was paid only 50% of full-time salary even though she was required to be available for work for 53.5% of full-time hours. The employer showed statistics that the employee actively worked fewer hours pro rata than her full-time colleague, despite being on call for proportionately longer. Was that relevant?

Not to the question of less favourable treatment, said the CoA. The requirement to be available for more than half of full-time hours for only half of the pay was less favourable treatment. However, the CoA said that actively working fewer hours might be relevant to justification, because it may limit the impact of the less favourable treatment. The CoA sent the case back to the ET to decide whether the treatment was justified.

If BA cannot justify its part-time pay structures, the cost for the company could be huge. Over 600 employees have brought similar claims. Employers should ensure that pay terms for part-time workers are consistent with their full-time colleagues or have a watertight business reason for any differences.

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