In Smith v Network Rail, a Team Leader failed to provide a urine sample for a drug and alcohol test due to a medical condition known as ‘shy bladder syndrome’. The claimant was subsequently dismissed for gross misconduct despite offering to do a blood test instead. An unfair dismissal claim was successful, and Network Rail was ordered to reinstate the claimant.
You can read the full judgment here: Smith v Network Rail
Background of Smith v Network Rail
Smith was first employed by Network Rail as an apprentice in August 2010. By the end of his employment, Smith had been promoted to Team Leader Track Inspections.
On 29 July 2019, Smith and four of his colleagues were required to undertake drug and alcohol testing. Smith informed the Testing Officer that he sometimes had difficulty urinating and offered to undertake other tests, including a blood test. Smith’s GP later provided medical evidence to show that Smith had been diagnosed with paruresis, otherwise known as shy bladder syndrome, which had prevented Smith from being able to provide a urine sample.
Nevertheless, Smith was dismissed for gross misconduct on 15 October 2019. The decision was upheld on appeal, despite the Appeal Officer accepting that Smith failed to provide a urine sample due to a medical condition. The Appeal Officer concluded that Network Rail’s drug and alcohol policy prevented consideration of any mitigating circumstances.
Smith brought a claim for unfair dismissal and requested to be reinstated.
The Employment Tribunal ruling
The tribunal ruled that the decision to dismiss Smith for gross misconduct ‘was a flawed and ill-considered decision’ as it was based upon ‘an unsustainable finding that the Claimant had refused to provide a urine sample’ when in fact, he ‘had been unable to… because of an undiagnosed medical condition.’
The tribunal concluded that Smith had not attempted to evade testing, as he had offered to undertake other tests such as a blood test.
The tribunal ruled that the decision to dismiss fell outside the range of reasonable responses available to a reasonable employer. In assessing remedies, the tribunal considered whether reinstatement would be practicable, and, whether it would be just and equitable if the claimant had caused or contributed to his dismissal. Network Rail argued that there had been a breakdown in trust and that reinstating Smith would ‘lead other employees to conclude that the claimant had found a loophole in Network Rail’s alcohol and drug policy which they will then exploit for their own benefit’.
The tribunal found that Smith had ‘not been responsible for any culpable, or blameworthy, conduct’ leading to his dismissal. Therefore it would be inequitable to prevent him from being reinstated. A contributing factor was the lack of similar, alternative employment available as a railway man meaning he would be effectively ‘locked out of such a career’. The tribunal also noted that Smith’s role at Network Rail remained vacant and that Smith had had a good working relationship with his line manager, which was likely to continue. As a result, Network Rail was ordered to reinstate Smith.
However, Network Rail refused to comply with the reinstatement order, and Smith was awarded an additional non-compliance payment of £27k. In total, Smith was awarded £90k in compensation for his unfair dismissal.
What does Smith v Network Rail mean for employers?
Smith v Network Rail illustrates the importance of carrying out a full and fair investigation with an open mind. If an employee provides medical evidence to support their account of events, employers would be wise to seek legal advice before discounting this evidence.
As drug and alcohol testing becomes more prevalent, a balance needs to be struck between treating people fairly and ensuring a safe working environment. Failing a drug and alcohol test or failing to provide a sample is likely to provide a reason to dismiss. However, drug and alcohol policies must be fair and reasonable and consider mitigating circumstances. For example, the impact of any medical conditions on a worker’s ability to participate in the testing process should be considered, and alternative options for testing should be available (such as a blood test).
What can we do to help?
If you would like HR advice, please contact our team on 0330 223 5253 or office@fitzgeraldhr.co.uk. We would be delighted to help you.
