Is it excessive to dismiss a manager simply for refusing to take a drugs test?

Apparently it may not be. In the recent case of Andrew Dyson v Asda, an Employment Tribunal held the dismissal was fair.

As always, context is everything.

In this case, Mr Dyson was a warehouse operations manager for Asda in Teesport. In the warehouse were employees who operated heavy machinery including fork-lift trucks. Asda had a comprehensive and clear policy on drugs tests, involving random testing and “for cause” tests in response to incident or suspicion. The policy also states that a refusal to undertake a test may result in disciplinary action up to and including dismissal.

Mr Dyson had, in the past, used the drug and alcohol policy in his management of his own staff and on one occasion he’d dismissed a colleague pursuant to the procedure. The contrast between applying the tests to his staff but then refusing to be tested himself seems to have reduced his esteem before the tribunal.

On 11 May 2015 Mr Dyson’s managers received an anonymous letter making various allegation regarding Andrew Dyson and illegal drugs. The letter referred to a 2009 news article, and during the course of investigation his managers found an article from 2005 with details in respect of a conviction for drug offences. It does not appear from the judgment that there was any allegation of him being under the influence of drugs at work.

Coincidentally, there were two Andrew Dysons working for Asda in Teesport operations. Both were asked by Asda to undertake a “voluntary” drugs test. The Andrew Dyson in this case was told that there were no suspicions about him and at least one of the articles had been proven to refer to a different Andrew Dyson.

This Andrew Dyson refused to take the test. His manager insisted that he do so, attempting to encourage him by saying she trusted him and thought he should take the moral high ground and undertake the “voluntary test”.

Mr Dyson continued to refuse. Amongst other things, he argued that the 2005 news article was not about him and he argued that Asda’s policy had not been followed to the letter. (It was established that the policy did not provide for the possibility of a voluntary test being offered before a ‘for cause’ one was required.) Mr Dyson also argued that had Asda’s drug and alcohol policy been followed to the letter, he would have taken the test. Finally, he stated that if Asda had believed he’d taken drugs, he would have taken the test, as he would have understood that the request for the test was reasonable. But he had been told there was no suspicion.

Mr Dyson was dismissed.

According to the tribunal judge, the Asda decision maker had taken as read that there was some suspicion, if only because of the anonymous letter. It is not said explicitly, but perhaps Mr Dyson’s refusal also increased the suspicion of his drug taking. The judge was not persuaded by Mr Dyson’s argument that his senior colleagues knew that he had done nothing wrong and had sought to reassure him of this belief, which (according to Mr Dyson) made their insistence on him taking the test unreasonable. In the judge’s eyes, Asda had been benevolent in calling it a “voluntary” test so as to reduce stigma and act warmly towards him: there had always been suspicion. Further, Asda could not have known whether Mr Dyson would have taken the test in other circumstances.

The judge considered all the circumstances of the case, but this sentence in the judgment is one of the most critical: “That in its potentially dangerous warehouse operations where forklift trucks abound, Asda could not run the risk of being tipped off about drug use without testing.” In other words, health and safety is paramount.

The judge agreed with Asda that, as a senior leader, there was onus on Mr Dyson to lead by example and set high standards for others to follow. By the time his refusal became principled, he was refusing to obey a reasonable management instruction. With the health and safety concerns identified above, dismissal was something a reasonable manager might well decide on.

So if a request by an employer to take a drug test is reasonable, refusal by an employee to take it is very likely to leave that employee without legal recourse if the employer then fires that employee.

As a related, but different, scenario, we’re occasionally asked by employers about how to deal with recreational drug taking by workers. For example, is recreational drug use always a reason for dismissal? The answer is no. Recreational drug use is not always relevant to a job. Likewise, employers introducing a drug testing policy should not take the decision lightly. There are trust and confidence, data protection and human rights issues to consider. If recreational drug use has absolutely no bearing on worker performance, the type of work required of the worker or the employer’s reputation, then disciplining a worker for drug use will be harder to justify. But where there are legitimate health and safety concerns, then whatever the manner and timing of usage, dismissal will likely be reasonable and so justified, and a drug testing policy may therefore be appropriate.

You're on our blog and updates site, which is hosted by elXtr. elXtr is a leading online legal information service owned by us, LHS Solicitors LLP.

Law for the online generation starts here.