Appeal No. EAT/0269/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 March 2002

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) 
MR A E R MANNERS
MR N D WILLIS

MISS K O'FLYNN	APPELLANT

AIRLINKS THE AIRPORT COACH COMPANY LIMITED	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR ROBIN DAVIS
(Solicitor)
Messrs K E Davies & Sons
Solicitors
Warley Chambers
Warley Road
Hayes
Middlesex 
UB4 OPU	
For the Respondent	MR THOMAS LINDEN
(Of Counsel)
Messrs Beachcroft Wansbrough
Solicitors
St Anne’s House
St Anne’s Street
Manchester
M2 7LP	

MR JUSTICE LINDSAY (PRESIDENT)

1.	We have before us by way of a Full Hearing the appeal of Katie O’Flynn in the matter O’Flynn v Airlinks The Airport Coach Company Limited.  Today Miss O’Flynn has appeared by Mr Davis of K E Davies & Sons and the Respondent company, Airlink, has appeared by Mr Linden.

2.	On 6 July 2000 Miss O’Flynn presented an IT1 for unfair dismissal and wrongful dismissal.  She had, she said, been employed from 5 August 1997 to 17 April 2000.  She had been a customer care assistant.  She said:

“On Monday 10 April 2000 the Applicant’s supervisor Heidi approached the Applicant and asked the Applicant to go with her.  The Applicant was taken by car to another office, where she was told she was about to undergo a drugs test.  The Applicant was given an explanation sheet to share with three others from which she discovered the test would involve her giving a sample of urine.”

3.	She said that a little later she was told that if she did not give a sample of urine she would be dismissed.  She continued:

“The Applicant then went to her supervisor, Heidi, and told her that she was concerned about the test as she had smoked some cannabis at the weekend.  She was told that if she told the truth it would be better for her.”

A little later she said:

“Following the test Heidi told the Applicant that she must go and see Keith Gay, the Heathrow Manager, who suspended the Applicant on full pay following her admission that she had smoked cannabis over the course of the weekend.
The Applicant was asked to attend a meeting on the 17th April 2000 where she was advised that her test had confirmed that she had an unknown quantity of cannabis in her system and she was dismissed for gross misconduct and failure to comply with the drugs and alcohol policy.
The Applicant (she says) denies that she was under the influence of cannabis whilst carrying out her work for the Respondent and that the mere existence of cannabis in her system did not amount to misconduct.”

4.	She said that even if her ability to carry out her work had been impaired, which she denied, then the decision to dismiss her was not reasonable and did not fall within the band of reasonable responses and a lesser sanction would have been more appropriate.  So that was the nature of the claim.

5.	On 17 July the company put in an IT3.  They said:

“Airlinks’ business is concerned with the movement of members of the public to and from and around airports.
Its reputation rests on the safe operations of its services and its dealings with the public.
The Company has a formal policy on Drugs and Alcohol which is displayed on all notice boards and is available to all members of staff.
The policy makes it clear that it will operate a regime of random drug/alcohol screening at the rate of 10% of the total employees each year.
The policy also makes it clear that a test resulting in a positive outcome will result in disciplinary action on the basis of Gross Misconduct which may lead to a dismissal.”

A little later they say:

“Prior to the sample being given Miss O’Flynn advised that she had been smoking cannabis at the weekend.”

And they say later:

“On the 17 April Miss O’Flynn attended a disciplinary hearing with a colleague acting as her representative/observer.
At the hearing Keith Gay confirmed with Miss O’Flynn that she was aware of the company policy on drugs and alcohol.  He also confirmed that the test result had proved positive for cannabis.
Miss O’Flynn was summarily dismissed and advised of her right of appeal.
Miss O’Flynn did not exercise her right of appeal.”

6.	That was the shape of the case as it went forward to a Hearing at the Employment Tribunal on 2 October 2000.  Miss O’Flynn was represented by a solicitor, as was the company.  On 12 January 2001 the decision of the Tribunal was sent to the parties.  It was the decision of the Tribunal at Watford under the chairmanship of Mr Plenderleath.  It was unanimous and it was that the Applicant was not unfairly dismissed and the Applicant was not wrongfully dismissed.

7.	On 21 February 2001 a Notice of Appeal was received from Miss O’Flynn.  On 24 July the Employment Appeal Tribunal at the Preliminary Hearing gave leave for an amended Notice of Appeal.  It would seem there was no request then both made for the Chairman’s notes and granted and, presumably, because the order does not suggest that a request had been made but refused, presumably there was not even a request either.  On 24 July 2001 an amended Notice of Appeal was lodged and on 7 August the Respondent put in an answer.

8.	At the Employment Tribunal there were a number of findings made which we need briefly to summarise.  In November 1999 the company had introduced a drugs and alcohol policy which included what was described in the case as a zero tolerance policy of drugs and it also introduced a random screening of 10% of its workforce per annum.  The policy included that a positive drugs test result would lead to disciplinary procedure that might result in dismissal.  Gross misconduct was defined as including reporting for duty with drugs in the system.  The policy represented a change in the Applicant’s contract of employment.  The Tribunal held that she was well aware of the introduction of the policy.  Its likely effect was discussed between members of staff.  She made no objection to the changes and continued working for the company.  The Tribunal held that she had therefore accepted the variation in her contract.  The Tribunal held that on 10 April 2000, a Monday morning, some five months after the introduction of the policy, she was randomly selected for testing.  She then told the nurse who was responsible for the testing that she had taken cocaine.  It is to be noted that references so far had been to cannabis but here the finding is that she said that she had taken cocaine the previous weekend and also admitted taking cannabis.  It was held that she told Mr Gay that she had taken a number of substances as well as that which she had smoked during the previous weekend.  She was then suspended by Mr Gay.  The test proved positive for cannabis but negative for cocaine.  She was then called to a disciplinary hearing on 17 April which she attended with the representative.  She agreed at the disciplinary hearing that she was aware of the company’s policy on drugs and that a positive test result was a dismissible offence.  She was then dismissed but did not appeal.  As to the nature of her duties in the course of employment the Tribunal said:

“In the course of her employment the Applicant could be required to assist drivers in manoeuvring coaches and could also be required to serve hot drinks on moving coaches and, although she was not asked to perform either duty on a regular basis, she could be asked to do so at any time.”

9.	The Tribunal held she had not expressly consented to random testing.  They said also:

“We find that applying the standards of a reasonable employer the Respondent has established reasonable grounds for his belief that the Applicant was guilty of misconduct and that its investigation into the matter was reasonable in all the circumstances.  The decision to dismiss falls within the band of reasonable responses which a reasonable employer might apply.  We find that there was no procedural irregularity which renders this dismissal unfair.”

10.	And they found this also:

“When asked why she told the nurse that she had taken cocaine during the weekend prior to 10 April when it was clear from the results of the tests that she had not done so she told the Tribunal that she had consumed so much alcohol during the previous weekend that she was not sure what she had taken or may have taken.”

11.	An argument was raised below under Article 8 of the Human Rights Act.  The Tribunal sets that out as follows:

“Article 8 provides:-
“1	Everyone has the right to respect for his private and family life, his home and his correspondence.
2	There shall be no interference by a public authority of the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interest of national security, public safety or the economic well-being of the country, for prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others””

12.	As to that the Tribunal concluded:

“It is common ground that the Respondent is not a public authority”

But they went on: 

“but the Tribunal must take account of the Applicant’s convention rights.”

And they said:

“In our view if an employee reports for work uncertain as to what he or she may have consumed during the previous weekend policies such as or similar to that introduced by the Respondent are necessary to ensure the safety of that employee and others.  In our view this was a problem which the Respondent had to address; the response to that problem was proportionate.”

13.	The first main question which arises in the course of the appeal to us is whether the Employment Tribunal erred in law in concluding that the November 1999 drugs policy and its implementation was part of Miss O’Flynn’s contract.  Mr Linden points out that this question is not one which falls to be determined as part of consideration of unfair dismissal because that subject does not, of course, rely only upon contract.  It is, though, a question which is very relevant to wrongful dismissal and cannot be said to be wholly irrelevant to unfair dismissal.  We need to remember that save where the parties to a contract have intended that its terms are exclusively to be found in one or more identified or identifiable writings (in which case, issues as to the terms of the contract are a matter of construction only and therefore a matter of law only) the identification of the terms of a contract of employment is a matter of fact.  Whether the parties have intended that the terms are exclusively to be found in one or more writings is itself a question of fact - see Lord Hoffman’s analysis in Carmichael v National Power in the House of Lords [2000] IRLR 43.  Lord Hoffman expressly contemplates the terms of contract of employment being partly left to evolve by conduct as time goes on - see paragraph 33.

14.	There is no finding by the Employment Tribunal in our case suggesting that the terms of Miss O’Flynn’s contract of employment were exclusively to be found in one or more writings.  Therefore the question of the identification of the terms of her contract was not a matter of law but of fact.  We cannot, of course, overturn a finding of fact short of there having been no evidence at all capable of supporting the finding or that in some other way the finding can be described as perverse.

15.	We have no Chairman’s notes and so we are unable to conclude that there was no evidence at all capable of supporting the Tribunal’s conclusion that the drugs policy was part of Miss O’Flynn’s contract.   Nor do the circumstances cause us to throw up our hands and say “Oh my Goodness.  That must be wrong”, which is one of the various formulations of perversity in this part of the law.  In not seeing the decision as perverse we take into account, as did the Employment Tribunal, the caution required in relation to introducing new terms of contract by way of unopposed variation - see Jones v Associated Tunnelling Co Ltd [1981] IRLR 477 EAT.  However, there a number of special features here.  First of all, the alleged variation was in our view of immediate effect in the sense that under it Miss O’Flynn became immediately susceptible to random testing and it immediately required her to attend for work free of drugs in her system or risk testing and disciplinary process.  Secondly, she knew of the policy and of its consequences.  Thirdly, she did not protest it.  Fourthly, she continued not to protest over some four months or so of employment from November 1999 onwards.

16.	Although Mr Davis urges in his written argument that it is unrealistic to have expected Miss O’Flynn to oppose the variation there is in fact no mention by the Employment Tribunal of any evidence as to precisely why she had not opposed it.  There is no mention either of any evidence as to why she could not have done so indirectly, for example through a Union or perhaps en masse with other fellow employees.  If, as the argument suggests, she gave evidence that she did not oppose it because opposing it would have sent a misleading message to the employer, we can only say that the message it would have sent - namely that she wished to be able to attend for work with drugs still inside her – would, as it transpired, not have been a misleading message but an accurate one.

17.	Mr Davies in oral argument accepted that a contract can be varied by the introduction of a policy by an employer followed by silence on the part of the employee.  That, it seems to us, in effect concedes that the question is one of fact.  Mr Davis argues that dismissal was taken by the Employer to be an automatic consequence once the admission of drug taking and the test had proved as those two things turned out to be.  There should have been, he says, some weighing up by the employer of Miss O’Flynn’s particular personal circumstances but here there was none.  But her circumstances included that she could be required to manoeuvre vehicles and serve hot food.  There were obviously safety reasons arising.  In the course of the actual disciplinary hearing that took place, according to a very brief note that we have, she was asked at the disciplinary hearing if she had anything further that she wished to add and she said “No”.  We do not have any Chairman’s notes as to the evidence given at the Employment Tribunal as to the manner in which the disciplinary process was conducted.  We cannot simply assume that the very brief note that we do have represented the whole disciplinary process.  In these circumstances it is not possible for us to hold either that the Employment Tribunal erred in holding the dismissal to be fair and to be within the band the reasonable responses or that the employer erred as suggested in the course of the disciplinary process.  

18.	A quite separate ground raised or series of grounds raised by Mr Davis concerns Human Rights arguments.  We have already cited Article 8.  Crucial to the Human Rights argument under Article 8 is the identity of the infringement of the Article which is complained of and which is therefore required to be considered.  We had at first understood Mr Davis to be saying that it was an infringement by the employer, namely his introducing and implementing a drugs policy that impacted upon the employee’s conduct outside work and which was also intrusive in the sense of imposing personal random testing.  If that is what is required to be looked at in Human Rights Act terms then all that was prior to 2 October 2000.  It is now clear, after some hesitation, that the Human Rights Act is not retroactive - see Regina v Lambert in the House of Lords [2001] 3 WLR Paragraphs 101, 112, 1169 and see Pearce v Governing Body of Mayfield Secondary School [2001] IRLR 669.  The employer back in April 2000 cannot have infringed Miss O’Flynn’s statutory Human Rights by testing her or dismissing her as she did not at that stage have any such rights.  If, instead, as Mr Davis made clear in his reply, he concentrates his fire on the Employment Tribunal which heard the case on the very day, the 2 October 2000, on which the Act came into practical force, then there never was below a complaint that the Employment Tribunal itself was in breach of Article 8 (nor, it may be added, Article 6) or that it would be so in breach of it decided as it did.  We add that argument under Section 3(1) of the Human Rights Act must fail as we are not concerned with the construction of legislation.  

19.	So, all in all, we see the Human Rights argument as failing.  But we do not leave the subject without touching upon one or two further difficulties.  It has to be noted that the company’s policy was not that drugs should not be taken by any employee.  It is the general criminal law that forbids consumption of cocaine and cannabis.  So far as the company’s policy rules were concerned, an employee was, on the face of things, free in his or her own time to take as much or as little of whatever substances he or she pleased.  The company’s rules engaged only when, so far as is relevant, an employee tested positive at work or reported for work with drugs in his or her system or refused to take the test whilst at work.  We say “at work” as there is nothing to suggest the company had any means to test other than whilst an employee was at work and the only test of which there was evidence was one at work on a Monday morning.  In what one might call true private life outside work an employee could indulge as much as he or she might wish, subject to the constraint to the criminal law, and the company’s policies only bit on the employee at work.

20.	It is thus difficult to see how the policy entrenched upon Miss O’Flynn’s private life save to the limited extent of her being required to provide a sample of urine as part of an established and unopposed random screening process and save also to the extent that the company’s policy and the practical effects of the testing process inescapably meant that no drugs having certain persistent detectable characteristics could be taken by employees in their private time without probably jeopardising employment.  If it were said that that entrenched upon rights under Article 8 as to private life that argument, legal difficulties apart, would have required, inter alia, evidence to be given as to the testing process here employed and as to the persistency of the traceability of drugs, evidence which we have no reason to think was given and which, in any event, we could not examine for want of Chairman’s notes.  Such question therefore cannot be explored in this appeal.

21	Secondly, we note that Article 8 relates to no interference by a public authority with the exercise of the rights given by the Article.  But it is common ground that here the company is not a public authority.  Thirdly, even a public authority, and one might therefore think, a fortiori, a non-public authority, can so interfere to a degree which is in accordance with the law and is necessary in a democratic society in the interest, inter alia, of public safety.  We remind ourselves of the fact that in the course of her employment she could be required to assist drivers in manoeuvring coaches and could also be required to serve hot drinks on moving coaches.  We remind ourselves also that she had volunteered that she had taken cocaine before the test was made.  There was no mention of evidence that testing or so called zero tolerance policy was unnecessary for safety reasons or was disproportionate.  The Employment Tribunal expressly held that the employer’s response was proportionate and we cannot say that that was perverse.  It is to be noted, too, that we have no finding as to the sensitivity of the test process, nor do we have any means of concluding that any quantity, however minuscule, could trigger an adverse positive result.  It may thus be to that extent a misnomer to speak of the policy as being one of zero tolerance.  It cannot be urged that even if someone had taken drugs, let us say, on holiday 21 days before the test in circumstances in which the amount could not possibly, after the lapse of time, have effected performance of his or her duties on return to work, he or she would necessarily nonetheless have been detected at the test and have incurred a risk of dismissal.  Nor is there any finding as to the amount of drugs taken by Miss O’Flynn, nor when she had taken them.  There is thus no material for an argument that having regard to the small amount taken or the lapse of time since their consumption that any effect on her could only have been negligible or non existent on the Monday morning in question.

22.	As Mr Linden rightly says, important and difficult questions could arise in cases such as Miss O’Flynn’s especially where the relevant events are after 2 October 2000 but they do not arise in this appeal for the reasons we have given.  Mr Davis then argues that the Employment Tribunal fails sufficiently to explain why it found the company’s policy and its implementation “proportionate”.  Mr Linden argues rightly that the point arises only if the Human Rights argument is relevant and therefore, if we have found the Human Rights argument to fail, this argument must also fail.  But, in any event, treating it as a point independent of Human Rights and as an argument simply under the familiar guidance of Meek v The City of Birmingham, the Tribunal did hold:

“We find that the introduction by the Respondent as a drug/alcohol policy  in the introduction of random testing were necessary in the interests of public safety and that it was reasonable for the Respondent to introduce this policy and to make it applicable to all its employees.  The policy was necessary for the protection of the Respondent’s customers and for the protection of the Respondent’s employees including the Applicant herself.”

23.	It is to be remembered that the employer was dealing with a workforce that included at least one employee who was turning up on a Monday morning quite uncertain as to what drug she had or may have taken over the weekend because she had consumed too much alcohol to leave her being able to remember.  The Tribunal also specifically held that the possibility of someone turning up against such a background made the policy (and, impliedly, its implementation) necessary for safety reasons.  That, in our view, was an explanation that easily passes the Meek v City of Birmingham test as to the adequacy of reasoning to be expected in Employment Tribunal decisions.  It is quite plain why the Appellant lost the issue of proportionality.

24.	Still on Human Rights, Mr Davis invokes the “least drastic means” doctrine developed in relation, he says, to the Canadian Charter.  We are not concerned with that Charter but in any event would pause before espousing a doctrine which, as it would seem, would destroy the lawfulness of any step described as necessary but which was intrusive of private life if only one could, ex post facto, show that some other steps slightly less “drastic” (whatever that means) could have sufficed to meet whatever need was thereby hoped to be met.

25.	The very thoughtful and stimulating arguments raised by Mr Davis (who did not appear below) include interesting and difficult points likely to arise over time in other cases where they will need to be resolved but for the reasons we have given they do not, as it seems to us, avail Miss O’Flynn in this case and accordingly we dismiss the appeal.