A Network Rail safety worker who was sacked after failing a drug test because he unwittingly drank herbal tea containing cocaine was unfairly dismissed, a tribunal ruled.
But Paul Glenholmes left the hearing with nothing after the judge imposed a 100 per cent reduction of his basic and compensatory awards, because he did not check what the drink contained.
Employment judge Martin Brewer said: “The claimant’s compensatory award shall be nil, because it is not just and equitable to award him compensation, or alternatively the compensation should be reduced by 100 per cent to reflect his contributory conduct.”
The Midlands East tribunal, held remotely over three days in October, heard that Glenholmes drank Mate Tea to relieve indigestion symptoms caused by medication prescribed for a disability.
Eighteen days later, Network Rail gave him a periodic drug and alcohol screening test – which he failed when the cocaine metabolite benzoylecgonine was detected.
He was suspended, before eventually being summarily dismissed, by Network Rail Infrastructure Ltd.
His tribunal claim for unfair dismissal succeeded, but his claim for unauthorised deductions from wages was dismissed.
Glenholmes started working for Network Rail Infrastructure on 14 July 2014, in what the tribunal report called the “health and safety-critical” role of on-train technician, dealing with track safety.
The tribunal heard he was on prescribed medication for a disability. The medication caused indigestion and on 6 September 2020, Glenholmes bought Mate Tea (sold as Tea of the Incas), which relieved his symptoms.
He continued to drink the tea thereafter and – having been given eight weeks’ notice – was on 24 September given a periodic drug and alcohol screening test.
The tribunal report said: “The result was that the claimant tested positive for benzoylecgonine, which is the metabolite of cocaine routinely looked for in urine to establish that cocaine had recently been used by the test subject.”
Glenholmes was suspended on 30 September. Shuren Suthanthiran was appointed to investigate and invited the claimant to a meeting on 21 October.
On 19 October, Glenholmes provided a statement. The tribunal report said: “In this statement the claimant confirms that the most likely cause of his failed test was his ingestion of the ‘Inka Tea’ (sic) which he purchased from a market stall.
“The product did not include a list of ingredients. He said that having researched the product, he now understood that the tea contained cocaine and he says expressly: ‘Having the information and research which I now know, I would not have in good conscience bought the product or consumed it’.”
Suthanthiran’s report recommended a disciplinary hearing, which was scheduled for 18 November, but Glenholmes provided a sick note citing “stress at work” and raised a grievance about the handling of his case.
The process continued, with the grievance being upheld and the claimant requesting a re-test of his urine sample – which subsequently confirmed the initial findings, the tribunal heard.
Shortly after being told, on 30 April 2021, that there would still be a disciplinary hearing, Glenholmes suffered a mental health crisis and was signed off work until February 2022.
The tribunal heard that the disciplinary hearing was held on 24 June 2022 and dismissing manager Ms Choudhry informed Glenholmes on 12 July that he was to be summarily dismissed. A September appeal hearing confirmed the decision.
Employment judge Martin Brewer was unequivocal about Glenholmes culpability.
He said: “I am in no doubt that the claimant was entirely to blame for his dismissal. He deliberately drank tea from South America without knowing, and not researching prior to drinking it, what it contained.
“He further failed to consider finding out what it contained, notwithstanding that it was at least as effective as the over-the-counter medication he had replaced with the tea.”
When it came to award compensation, Brewer added: “In my judgement it is not just and equitable to award the claimant any compensation.”
He continued: “Even if I am wrong about that, in my judgement the claimant was wholly to blame for his dismissal and although there were procedural problems with how the case was dealt with by the respondent, leading as it did to the respondent’s concession that the dismissal was procedurally unfair, these are not so serious as to mean that the dismissal was also substantively unfair, and in my judgement it was not.
“In short, had the procedure been within the band of reasonable response the claimant would still have been dismissed, quite possibly sooner than was in fact the case. In that case I would reduce the compensation to nil for contributory conduct.”