O'flynn v Airport Coach Company Ltd[CA (Civil), 24/09/2002]

This is a renewed application for permissionto appeal against the decision of the Employment Appeal Tribunal, presided over by the tribunal's president Mr Justice Lindsay, given on 15th March 2002. Permission was refused on the papers by Lord Justice Pill on 5th August 2002.

Mr Davis, who is a solicitor, has appeared before us. He did not ask or require his client to come to court; consequently she has not been here. Mr Davis lacks the necessary advocacy certificate to confer on him any right of audience in this court. To avoid an adjournment and further expense we agreed to hear him. That was a wholly exceptional course. The rules relating to rights of audience are detailed and carefully balanced. It was improper for Mr Davis not to tell his client that she should be at court. His failure to do so effectively pre-empted the court's approach to the proper procedure. We trust that no such thing will happen again.

The applicant had been employed by the respondent as a customer care assistant from 5th August 1997 to 17th April 2000 based at

Heathrow Airport. The respondent employer operates a coach service in and around the major airports. In November 1999 the respondent introduced a drugs and alcohol policy in the work place. It has been called a zero tolerance policy but I am not sure that is a very helpful epithet. What it involved in practice was that 10 per cent of the employees chosen at random would be asked to submit to a drug/alcohol screening process each year. If a selected employee's test result proved positive, or, as I understand it, if he or she refused a test, action would be taken in accordance with the company's disciplinary procedure and that might result in dismissal. In addition, it was stipulated that an employee reporting for duty with drugs or alcohol in his or her system would be held guilty of gross misconduct.

On Monday 10th April 2000 the applicant was selected for screening and asked to give a sample of urine. She told the nurse who was to do the test that she had taken cocaine the previous weekend. She admitted taking cannabis as well. She was accordingly suspended on full pay pending the test result. The result when it came was positive for cannabis but negative for cocaine. There is some evidence that the applicant said she had drunk so much that she could not remember what drugs she had taken over the weekend. She was called to a disciplinary hearing on 17th April 2000. She accepted that she knew of the company's drugs policy and that testing positive was a dismissible offence. She was dismissed.

She brought proceedings in the Employment Tribunal alleging wrongful and unfair dismissal. In addition to the matters set out I should note this finding by the Employment Tribunal:

"9 (v) 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."

Three arguments appear to have been run before the Employment Tribunal. First, it was said the drugs policy was a unilateral variation of the applicant's contract of employment to which she had not consented. Secondly, it was said that the sanction of dismissal was, on the facts, unreasonable and unfair. Thirdly, it was said that her rights under Article 8 of the Human Rights Convention had been infringed. It is to be noted that the Employment Tribunal hearing took place on 2nd October 2000, the day when the principal provisions of the Human Rights Act 1998 came into force. The Employment Tribunal dismissed her claim and her appeal to the Employment Appeal Tribunal was also dismissed.

I should note in passing...