A relatively new phenomenon on the UK Pharmaceutical landscape, CBD oil is a recently legalised medicinal derivative of cannabis, popularised by those seeking alternative forms of medicine. Homeopathic in nature, the oil is supposedly used to treat a wide variety of ailments, and can be obtained from various UK Health Food Stores and online retailers.
Owing perhaps to this novelty, an employer’s Drug and Alcohol policy will not ordinarily make any provision for such medicines and supplements. The difficulty caused by such ambiguity was graphically illustrated in the recent case of Clarke v BAE Systems Marine Limited [2020] UKET 2410629/2019, in which Mr Clarke, a plant operative involved with the maintenance of nuclear submarines at the employer’s Barrow-in-Furness site claimed that he had been unfairly dismissed following a failed drugs test.
Due to the safety critical nature of his role, the employee was subjected to random drug testing. Upon failing one such test, the employee disclosed to the employer that he had been taking CBD Oil in order to alleviate discomfort caused by wrist and hip problems, but only after seeking assurances from both the employer’s Occupational Health department, and directly from the supplier that the levels of THC (the psychoactive component of cannabis) would not present in high enough quantities to be detected by the test. It was, he was assured, entirely safe to consume.
After a thorough investigation, the employee was dismissed for gross misconduct. Before the Tribunal, he sought to argue, amongst other things, that the employer’s Drugs policy was ambiguous, stating on the one hand that the employer operated a zero tolerance policy and that all failed drugs tests in safety critical roles would result in disciplinary action, whilst on the other stating that leniency would be given to first time offenders. The Claimant argued that leniency should have been considered, given the steps he had taken to ensure that the product he had consumed was safe and within legal limits; further commenting that the batch he had consumed must have been in some way defective, before offering the same to the Investigating Officer for analysis.
Acting for the Respondent, Robert Lassey, instructed by Molly Horton at Burges Salmon LLP argued that the employer’s Drugs policy only allowed for such leniency in circumstances where an employee had already declared a dependency ahead of the failed test, and was actively seeking assistance in respect of the same. Should the Claimant’s submissions as to the steps taken and the defective nature of the product have been accepted, it would drive a coach and horses through the efficacy of any Drugs Policy in similar cases. In short, should the employee’s dismissal be found to be unfair, any employee who failed a drugs test under similar circumstances would also be able to plead ignorance and/or a defective product, with little scope for an employer to be able to properly and independently analyse the veracity of these claims (i.e. there would be no way of ensuring that the product offered for analysis was the same product responsible for the failed test), thus making a fair dismissal a virtually impossible task for an employer to achieve.
The Tribunal agreed, concluding that although the circumstances in which leniency could be exercised in the face of a failed test was not precisely defined in the employers policy, the Claimant had nonetheless been fairly dismissed. It was a reasonable decision for the employer to have declined to analyse the products in the circumstances for the (primarily policy) reasons submitted above. The Claimant knew the risks he was taking in consuming an unlicensed product, and yet chose to do so regardless. The fact that he may well have also been the victim of misfortune by the drug company’s failure to adequately regulate their own products did not exculpate him from the consequences of those actions. The Tribunal further concluded that 100% deductions for both Polkey and/or Contributory Fault would also have been applicable, had the Claimant succeeded in his claim.
Thus, this case serves as a salutary reminder that in order to avoid the risk of litigation in this area, employers must ensure that any exceptions to their Drugs policy are set out in clear terms therein, and are regularly updated to reflect the latest legislatory changes, and societal trends.
The full Judgement is accessible online, and can be viewed here: