The claimant in Kuehne and Nagel Ltd v Cosgrove worked for the employer as a warehouse operative.  Her job as an order picker involved driving a vehicle around the warehouse picking up heavy weights.  She was asked for her consent to be tested for cannabis use following what she was told was an anonymous tip-off.  She gave her permission, confirming that she was aware of the contents of her employer's substance misuse policy.  The policy contained a list of scenarios, under the heading "Drug Tests Results", that were classified as gross misconduct under the company's disciplinary procedure.  These included a positive drugs screen result.

The claimant’s result tested positive for cannabis and she was summarily dismissed.

The tribunal decided that the claimant had been unfairly dismissed, largely on the basis that the employer had failed to carry out an adequate investigation.  The employer had not looked into whether the employee was in fact intoxicated at work (which was also gross misconduct, under a code of conduct) and had dismissed simply on the basis of the positive drugs test.

The EAT found that the tribunal had not approached the question of the fairness of the dismissal correctly and remitted this issue to the tribunal.  The employer was entitled to rely on the positive test result as the reason for the dismissal and the tribunal should have asked whether that was capable of being a misconduct reason.  As the EAT commented, it was hard to see why it was not, since it was plainly identified as gross misconduct under the substance misuse policy.  More generally, the tribunal should have taken into account evidence as to why the employer had introduced a zero tolerance policy – the dangers obviously posed when employees operate heavy machinery in a warehouse environment.

The EAT also took the opportunity to comment on the issue of an uplift in compensation for a breach of the ACAS Code on Discipline and Grievance.  The tribunal Judge had said that this was a case where a 20% uplift was appropriate.  Again the EAT disagreed.  Failure to comply with the Code must be unreasonable before the tribunal may even consider increasing any award of compensation to the claimant.  In any event, this would not be a case justifying anywhere near the maximum uplift of 25%.