Saving a career that threatened to go up in smoke

There are times as an employee you just have to admit you have done wrong - and hope that telling the truth means the response is not as bad as it could be.

Car showroom worker Dylan faced the threat of dismissal after refusing to take a drugs test at work.

He later admitted he did so because he knew the result would be positive for cannabis. Dylan was suspended from work, and feared the worst.

Refusing to take the test and drug taking were listed as acts of gross misconduct in the employer’s disciplinary policy.

Drug testing was routine at the large dealership, where Dylan had taken and passed numerous tests during the seven years he had worked there.

Dylan knew the odds were stacked against him when he contacted our Employee Support Centre for help.

When Dylan first spoke to our representative he admitted that he had been stupid and done wrong, but did not believe he deserved to be sacked.

Dylan explained he had suffered with severe depression for a number of years and his life, both inside and outside of work, had spiralled out of control in the months leading up to his refusal to take the test.

In work, he had been implicated in a fraud committed by a former manager, but cleared following a disciplinary investigation.

Dylan had also had to raise a grievance for unlawful deduction of wages after becoming frustrated at not being paid a bonus he said he was owed. The grievance was rejected.

Outside of work, his 18-year relationship ended, he had left the family home, was staying with a friend, he had been experiencing undiagnosed tingling and numbness in both arms for quite a while but had not sought help.

He was first offered cannabis by a friend, smoked it and found it made him feel better. Dylan said he only started smoking it a month before he refused the test.

Desperate Dylan told our representative he needed to keep his job as it was the only thing that gave him stability in his life.

Our representative did say it would be difficult, but assured him he could make a strong argument based on mitigation and in what would essentially be a plea for leniency.

At a disciplinary hearing Dylan faced an allegation of refusing to take a drugs test.

Our representative told the hearing that as Dylan’s depression was long-term it was likely to be a disability under the Equality Act 2010.

The employer was reminded that it was aware of Dylan’s mental health struggles as he had various periods off work as a result of it, but had not been given any meaningful support. Our representative pointed out this could be considered a failure in an employer’s duty of care.

It was explained that work-related problems, significant personal difficulties and undiagnosed health concerns exacerbated the symptoms of Dylan’s depressive disorder, and his ability to cope was reduced and impaired as a direct result of his disability, which led him to act in the way he did.

It was added that to punish him too severely in the circumstances could amount to discrimination for matters directly arising from his disability.

Our representative also argued that dismissal should not be an automatic sanction with a finding of gross misconduct, as sometimes based on the mitigation, such as that in Dylan’s case, it may not be a reasonable response.

The hearing was told Dylan was remorseful, apologetic, had gained stability in his personal life and had moved into his own place, was seeking help from his GP about the feelings in his arms and had stopped smoking cannabis and was willing to comply with any testing regime if he could return to work.

A week later Dylan was informed by letter that he would be issued with a first written warning.

He willingly accepted it and chose not to appeal against the warning.