Employee in possession of cocaine successful in discrimination claims

The claimants in the case of Ms Crew & Ms Mason v Three Milestone Education Ltd were Teaching Assistants at the Respondent’s school. The first claimant (Crew) was employed from 4 September 2018. The second claimant (Mason) was employed from 6 January 2020.

Concerns were raised to the Head Teacher and the safeguarding lead about discussions having taken place between the claimants about drugs. It was suspected that Mason had class A drugs (cocaine) delivered to the school during working hours, and that she asked Crew to remove drugs from her car to stop them from being found by an imminent police search of her vehicle.

The claimants were suspended and in the suspension letter it stated that they were forbidden from having any communication with colleagues. The respondent appointed one investigating officer for Crew and another investigating officer for Mason. For the disciplinary hearing the investigating officers switched so the officer for Crew became the disciplinary officer for Mason and vice versa.  

At the disciplinary hearing Mason brought her mother as her chosen companion because in the letter sent to her by the respondent informing her of her suspension, she was informed she was prohibited from contacting colleagues. The respondent’s rules matched the statutory rules meaning the claimant could be accompanied by a colleague or trade union representative. As such, Mason’s mother was asked to leave.

Both claimants were dismissed in August 2021 for gross misconduct.

As Crew had over two years’ service, she brought a claim for unfair dismissal. The employment tribunal found that she had been procedurally unfairly dismissed due to the decision maker in the disciplinary being the investigator in the other case. The tribunal found that because the matters were so closely related, having the investigating officer of one claimant sit as the disciplinary officer of the other claimant, and vice versa, was ill advised as the decision maker was already involved and contravened ACAS guidance and the ACAS code of conduct. It found however that there was 100% chance she would have been fairly dismissed anyway in due course, and she contributed in the alternative one hundred percent to her own dismissal.

As Mason had under two years’ service, she could not bring a claim for unfair dismissal but brought claims for failure to make reasonable adjustments and harassment. The ET concluded that as the school knew that she was disabled - she had anxiety and depression - and may have needed support, and because the suspension letter had forbidden communication with colleagues, allowing her mother to attend was an “easy adjustment to make”. Her claim for failure to make reasonable adjustments in the form of representation by her mother succeeded. Excluding her mother also created an intimidating environment so she was also successful in her claim of harassment.

The case serves as a useful reminder that a reasonable adjustment may be to vary procedures to allow others outside of a colleague or union representative to accompany an employee to a disciplinary hearing. It is key for employers to check their invitations to disciplinary hearings to ensure that they state that should an employee wish to be accompanied by a fellow employee that they know who to contact to make the necessary arrangements, where being on suspension means they are not permitted to talk to colleagues about what’s going on. Employers should also ensure that wherever possible they have an someone impartial conducting each stage of the disciplinary process.