In this case the employee was a Postman who had been employed since 1999. Whilst on long term sick leave for back pain in 2011, he was convicted for possession of drugs and sentenced to a nine month prison sentence which was suspended. The matter came to the attention of his employer when it was reported in the newspapers that he was a former heroin addict and had been caught in possession of cocaine wroth €2,500. The Postman had not revealed his addiction to his employer. Whilst the subsequent investigation carried out by An Post confirmed that the employee was not a known drug dealer and had been forced into holding the drugs for a dealer who claimed that he owed a drug debt of €350, they ultimately decided that it was too serious a matter that impacted on the required trust in the role of Postman and he was dismissed on 18th January 2012 for gross misconduct. Mitigating personal circumstances put forward by the Postman's union representative were not accepted. The Postman appealed the decision to dismiss him which was upheld on the basis that that the Postman was in a position of trust and whilst he had been coerced by nasty individuals into holding the drugs, the risk remained of his involvement in drugs along with the potential risk of theft of valuable items that the Postman would be delivering.
The EAT determined that for a dismissal to be fair in respect of activity outside of the workplace there needed to be a genuine connection between the employee's offence and the employment and that the connection must be such that:
- It leads to a breach of trust and/or causes reputational and/or other damage to the Company;
- The employee's offence makes the employee unsuitable to continue in their job;
- The employee's offence causes the employer to genuinely lose trust and confidence in the employee;
- The employee's behaviour risks bringing the employer's name into ill repute; and
- The dismissal is more likely to be fair if the conviction is reported in the Press.
In this case the EAT was satisfied that the employee had destroyed the relationship and level of trust which was required in the role of Postman and that a reasonable employer would be rightly concerned about the potential risk with further drugs related activity being carried out under the guise of the Postman's deliveries.
However it should be noted that each case must always be looked at on its own merits and in another case in which a Tesco worker had been convicted for the sale and supply of drugs, it was deemed that he was unfairly dismissed ( Marvin Moore v Tesco UD 2924/2011) and that the employer had not given sufficient consideration to alternative sanctions.