Hello and welcome back to your weekly case law update. Last week we veered away from the EAT and looked at employer vicarious liability. This week we have a case on disability discrimination, drug testing and unfair dismissal.

The question this week is:

Can an employee be unfairly dismissed for refusing to take a drugs test?

Chivas Brothers Ltd v Christiansen

Mr Christiansen, the Claimant, was employed by Chivas Brothers, the Respondent, a distiller and distributor of alcoholic drinks. The Claimant suffered from depression and the Respondent was aware of this. As part of its health and safety policy, the Respondent would test employee for drugs and alcohol if they had cause to do so.

The Claimant fell asleep at work. The Respondent, as part of its policy, asked the Claimant to take a drugs test. The Claimant refused citing his depression (and the medication he was taking to treat it) as the reason for him falling asleep. He was asked to take a second test but the Claimant produced medical evidence that he was unfit to attend the test. Nevertheless, the Respondent dismissed the Claimant for refusal to take the test.

The Claimant brought unfair dismissal and disability discrimination claims. During evidence, the Respondent’s HR Manager stated that the Claimant posed no health and safety risk. The ET held that the dismissal was unfair because his disability meant there was no need for a drugs or alcohol test. The ET cited three reasons why the Respondent was unreasonable to dismiss the Claimant:

  • rejecting the Claimant’s explanation for falling asleep at work
  • failing to take account of the reasons for his refusal to take the first test
  • failing to understand refusal to take the second test when there was unchallenged medical evidence that he had been unfit to attend

The Respondent appealed citing the ET’s failure to balance the interests of the Claimant and Respondent. The EAT rejected the appeal. It held that the need to uphold its H&S policy did not outweigh making reasonable adjustments for the Claimant, who the Respondent had admitted posed no risk.

The takeaway point:

This case clearly shows that there must be a purpose for getting an employee to sit a drugs test. If an employee has showed evidence that there is drug or alcohol consumption, or, they pose a health and safety risk, then an employer could fairly dismiss them for failing to take the test.

However, if the test is being forced on an employee when they have a valid explanation and/or do not pose a risk to health and safety, then it is unfair to dismiss them for refusing to take the test. An example of where drug testing would be appropriate can be found in a previous case we covered.