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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 48176
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I wonder if you can assist me with some advice. I have recently

Resolved Question:

I wonder if you can assist me with some advice. I have recently resigned from my job following a random drugs test in which I tested positive and showed as an occasional user of cannabis.
I feel that I have been discriminated against as there was no impairment to my work, in fact I had very recently been promoted and put forward for a recognition award for my recent work.
To give you some of the facts:
I have suffered with stress, anxiety, severe depression and paranoid ideation since my teenage years (I am now 41, I have been under doctor treatment for this on and off for many years. I am on medication for depression, have previously been on anti-psychotics and have visited psychiatrists several times)
I informed the company that I suffer from depression on joining the business in July 2013.
In 2012 I suffered from a massive multiple pulmonary embolism and whilst in hospital I was given regular morphine and other medication to assist with the pain and my recovery. This was an unexpected incident and left me terrified of re-occurrence. Whilst in hospital I requested and was given an emergency appointment with a psychiatrist as I was not coping with the incident.
After my dismissal from the hospital I began to smoke cannabis occasionally to reduce my anxiety attacks.
In 2014 (unsure of date) I contacted the Employee assistance programme to assist me with smoking cessation. When they enquired if I use any dugs I informed them that I smoke cannabis to assist with anxiety. They told me they were unable to help with this.
I have informed my GP on several occasions that I use cannabis.
I have tried many times and methods to stop smoking including patches, gum, Champix and hypnotism none of which worked.
Over the 25th May bank holiday I had 5 days leave from work. This was when I last used cannabis.
The random test at work was undertaken on 11/06/2015. I was pulled out of a meeting with three other members of staff who were laughing and jeering that I was to have a random drug test. The test was undertaken by a male but the policy dictates that a refused test will be subject to disciplinary procedure.
The results were received on 18/06/2015 when I was immediately suspended from work on full pay and escorted from the premises.
My work does require security screening (Defence industry, private sector) and has a drug and alcohol policy which includes random testing.
I work in an office environment.
The day after the test I spoke with my line manager to inform him that I had taken the test and believed I would fail. He then informed his boss and another manager with whom I have a good working relationship and I had hoped would represent me in the investigation meeting which was to take place on 29/06/2015. I advised my manager and HR that I would undergo therapy, self help and future testing for the rest of my career if they would allow me to retain my job.
My representative was unable to attend the meeting & no re-arrangements were offered or made. He then held a brief meeting with HR on 25/06/2015.
Following his meeting with HR he phoned me and advised me to resign, informing me that HR had already made arrangements for an appropriate manager to be in place for the hearing (which was to take place on 30/06/2015) with the intention of firing me.
HR had agreed that they would drop the investigation if I resigned with immediate effect. (three weeks short of the two year period to claim constructive dismissal).
No medical opinion was sought and I do not believe there would be any consideration given to make reasonable attempts to support or assist me. I have not used cannabis since the May bank holiday period. Did the employer have a duty of care in this respect?
Since being suspended from work my anxiety and stress levels have got completely out of hand. I have visited my GP who has prescribed Diazepam and written a sick note for one month for stress and anxiety.
I support my husband and three children and now have no income whatsoever. As I resigned I do not think I can claim any benefits.
On 30/06/15 The company phoned to ask me for my company credit card to be returned. they did not enquire how I was and were blunt and unsympathetic.
I have always found that working alleviates my stress and makes me feel worthy, to this end I strive to be a top employee and give 110% to my job. Being strong enough to support my family on my own gives me a sense of achievement I do not get anywhere else hence I make every effort at work to be the best I can be and achieve my ambition to succeed. This alone is a substantial effort for me as I have difficulties with social situations and have requested numerous times at work to have a quiet space or office in order to avoid anxiety.
I feel strongly that this is discrimination arising from disability and constructive dismissal. Would this be subject to privacy laws or defemation?
Submitted: 2 years ago.
Category: Law
Expert:  Ben Jones replied 2 years ago.
Hello, my name is***** am a solicitor on this site and it is my pleasure to assist you with your question today. Why do you think privacy laws and defamation are relevant here?
Customer: replied 2 years ago.
Hi Ben, I mentioned privacy based on the amount of people at work who were aware of the test on me, and defamation based on my manager disclosing to his senior plus another. I feel the main issue for me is that I was a smoker during my private time with no ill effects on my work whatsoever and that I became a user following my illness where I was prescribed strong drugs for some time. I was not offered any employee support or asked to speak with any medical personnel. I have now seen a doctor since this happened who has prescribed me diazepam and witten me a months sickness note for stress and anxiety.
Expert:  Ben Jones replied 2 years ago.
Hi, there are a number of issues here so I will try and deal with each one in turn. Defamation – there is no defamation because that would require someone making untrue comments about someone and if the information which was disclosed was true/factual then no defamation could occur. Breach of privacy – potentially yes but it is difficult to pursue this in any way. Generally, it would allow you to raise a grievance or resign and claim constructive dismissal but as you did not have the required length of service to do so then it would not have been an option. In terms of legal action you can only sue if you have suffered actual losses as a result of that breach, which you have not. Discrimination – if you suffer from a disability then the employer would have a duty to make reasonable adjustments and also not to treat you detrimentally because of it. What you must understand here is that the reason for your suspension and potential dismissal, together with your resignation, was not due to discrimination – it was because you were guilty of a misconduct offence and potentially a criminal act. You may have been a cannabis user because of a disability but that is not a lawful way to deal with this and if there is a substance misuse policy in place then the employer is rightly able to use that to discipline you or even dismiss you because of this breach. As an example, if you suffered from depression and the only way you could make yourself feel better was to go and shoplift then you could argue that your disability had been the reason for this behaviour but it does not make it acceptable – it is still unlawful and doing so could result in disciplinary action or even dismissal. So you would not really be able to challenge the reasons for the resignation or claim unfair or constructive dismissal. It is clear why the employer went down that route – it is not your disability but the fact you had tested positive for substance misuse and there is unfortunately no excuse as to why you were required to use drugs. Prescription drugs would have been fine – illegal drugs I am afraid not. So the only way you could try and pursue this is if you can show that during your employment, with the employer’s knowledge of your disability, they had not made reasonable adjustments. Ignore the recent disciplinary issues – these are not going to be relevant because they were applied for a reason. So you are really looking if in any way unconnected to the drugs issue the employer had not treated you as they should because of your disability. For example in making reasonable adjustments - what amounts to ‘reasonable adjustments’ can have a wide interpretation and often depends on the individual circumstances of the employer, their business, the potential impact on other employees, the available resources, etc. Whilst legislation does not currently provide specific examples of what adjustments can be made, the following are examples that have been considered reasonable in case law over time:making adjustments to work premises;allocating some of the employee’s duties to others;transferring the employee to fill an existing suitable vacancy;altering the employee’s hours of work;allowing the employee to be absent during working hours for rehabilitation, assessment or treatment connected to their disability;acquiring or modifying specialist equipment. You must also be able to show that the discriminatory actions you are relying on had occurred no less than 3 months ago because you only have 3 months to make a claim from the date the discriminatory behaviour had occurred. So if any of these happened more than 3 months ago then you cannot claim now. I trust this has answered your query. I would be grateful if you could please take a second to leave a positive rating (selecting 3, 4 or 5 starts at the top of the page). If for any reason you are unhappy with my response or if you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
Customer: replied 2 years ago.
Hello Ben, Thank you for your comprehensive response. Could you kindly just clarify for me a little more on the discrimination arising from disability. It is my understanding that a substance abuse which has resulted originally from the result of medical treatment is protected under the act? My use of cannabis began following heavily prescribed morphine and other strong medication. I declared on starting my job that I suffer with depression, this causes me to have difficulty with leaving the house and social situations. Throughout my employment I have consistently requested a quiet working area and was able to work from home on occasion.
I was referred to as a top employee but feel that no reasonable adjustments were made in this instance. I told HR I was willing to take drug tests for the rest of my career if they would allow me to retain my job. This situation was a clear mistake on my part for which I take full responsibility but it was not in working hours and my success at work was rising consistently. Sorry to be repetitive, I appreciate your advice very much.
Kind regards, Sarah
Expert:  Ben Jones replied 2 years ago.
Hi, the Equality Act 2010 specifically makes provisions for substance misuse and states that addiction to, or dependency on, alcohol, nicotine, or any other substance (other than in consequence of the substance being medically prescribed) does not qualify as an impairment. So if you had substance misuse issues with a prescription drug then that could qualify but cannabis is not medically prescribed and as such would not be covered. So the fact that you have failed a drugs test could still be used against you even if you used cannabis to alleviate the symptoms of a disability. So if you wish to pursue a claim for failure to make reasonable adjustments then it would be done separately to this matter and cannot necessarily prevent a dismissal on those grounds. Hope this clarifies?
Customer: replied 2 years ago.
Hi, I cannot find anything in the legislation which states that a substance being used as a result of medical treatment must be legal? This seems to be open to interpretation.
Expert:  Ben Jones replied 2 years ago.
Well you are free to take this up with the tribunal and persuade them that it should be included but you wanted a legal opinion and I have given you that. I know that it would be extremely difficult to argue that illegal substance misuse would amount to a disability or impairment. It is illegal for a reason, there is nothing that would justify its use, it may be a shortsighted approach but it is the law
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