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Team Sky’s anti-doping stance

2012 was a good year for British road cycling.  It was less good, thanks to the Lance Armstrong saga, for road cycling in general.  One particular fall-out from the USADA report and its endorsement by the UCI has been Team Sky’s new declaration of past cleanliness policy.  It has required a declaration from all current employees to the effect that they had no previous involvement with drug taking to enhance performance.  The penalty for reporting past involvement, as reported by some, has been dismissal. 

Whether Sky’s approach to each individual was quite so draconian may be open to question.  Such an approach certainly raises interesting legal issues.  This is particularly so given Sky’s approach to doping from its foundation.

As a matter of contract, it is always open to an employer to give due notice to an employee for any reason whatsoever.  What of the law of unfair dismissal?

When (and how) can an employer impose additional conditions for the continuation of employment?  This leads to a further question.  Is it material to consider whether the circumstances said to justify the additional condition were foreseeable (and, perhaps, even foreseen) at the time employment began?

The failure to meet the additional condition – here that of having not been previously involved with drug taking – could be said to amount to ‘conduct’ and, if not, to ’some other substantial reason’ for dismissal.  Conduct need not relate to activities on behalf of the current employer.  Insisting on changes such as the addition of a restrictive covenant have been held to amount to a substantial reason, the courts pointing out that issues of reasonableness should be considered separately under s.98(4).  Hence, both reasons provide potential gateways to a fair dismissal.

A consideration of the issue of reasonableness is likely to raise more difficult questions.  For present purposes it is assumed both that the issue of past involvement with drugs was not raised prior to employment and that there is no particular contractual term designed to enable it to be dealt with later. 

The revealing of a prior involvement with drugs might conceivably have some impact upon future performance, or upon the ability to perform at all.  It might be arguable that some enhancement of performance might persist.  Alternatively, it might be the case that, once revealed, the prior involvement would be likely to (or bound to) lead to a period of suspension by the UCI.  Such factors (assuming they influenced the decision to dismiss) would be likely to prove powerful in relation to fairness.

More difficult is the case where neither factor is present.  The involvement with drugs may not have involved personal use and/or it may be that it would have to accepted that the involvement was a very long time ago, in a different era (with a different culture) and it was not thought to suggest a propensity to repeat that conduct.  The justification for dismissal would then have to be a reputational one.  An employer in Sky’s position would face the difficulty that the anti-drug stance of the team was clearly established from the start, the possibility that potential employees were previously involved would have been clear and the questions being asked now could have been asked pre-employment.  In those circumstances, the answer to the fairness question is not straightforward.
Related link:  Profile of Andrew Clarke QC
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