Employment Law Update - Dismissal for failing drugs test


18 December 2018

An employment tribunal has considered whether a bus driver was fairly dismissed for failing a routine drugs test.

Ball v First Essex Buses Limited, ET 3201435/2017

Facts

Mr Ball, a 61 year-old diabetic bus driver, was dismissed for failing a routine drugs test after over 20 years of unblemished service. 

The employer, First Essex, had a drug and alcohol testing policy which allowed it to carry out random testing. A saliva test carried out on Mr Ball showed positive for cocaine. Mr Ball denied ever using cocaine and suggested that the sample may have been contaminated, perhaps through the handling of bank notes. He arranged for his own independent test to be conducted; a hair follicle test which did not detect any cocaine in his system. This test was disregarded by First Essex as it was not carried out by the company’s approved tester. The first saliva sample was sent to a second drug testing agency, which confirmed the presence of cocaine. 

Following a disciplinary hearing, Mr Ball was dismissed for gross misconduct. Two internal appeals against his dismissal failed. The testing laboratory indicated to the appeal manager that the transfer of cocaine from bank notes to hands and then saliva was highly unlikely to cause a positive result.

Mr Ball brought claims against First Essex for wrongful and unfair dismissal.

Employment tribunal decision

The employment tribunal upheld Mr Ball’s claims, finding that First Essex had not acted within the range of reasonable responses both when carrying out its investigation and applying the sanction of dismissal. 

The company had failed to take into account the results of the independent hair follicle test, claiming that it was not its policy to do so, when in fact the drugs and alcohol policy was silent on the issue. The disciplining manager had adopted a blinkered view towards the evidence and had ignored Mr Ball’s offer to take another test. Mr Ball was not informed of what further investigations were conducted nor given the opportunity to comment. The appeal manager questioned the integrity of the hair follicle test without any basis for doing so. In addition, failing the drugs test was treated as sufficient evidence of gross misconduct but this was not listed as an instance of gross misconduct under the disciplinary policy. Failing the test did not equate to being under the influence of drugs, which First Essex had indicated was the reason for the dismissal.

According to the tribunal, a reasonable employer would have re-tested the employee. As a long standing employee, with an unblemished record, facing a career-ending decision, it was outside the band of reasonable responses not to conduct further inquiries. In addition, the disciplining manager and appeal manager did not appear to hold a genuine belief in Mr Ball’s guilt but indicated that they were bound by the terms of the company’s policy.

Mr Ball was awarded ongoing unfair dismissal losses for a period of three years and his claim of wrongful dismissal was also upheld by the tribunal.

Consequences

As a first instance decision of an employment tribunal, this decision has no binding effect but provides a good illustration of how a dismissal for failing a drug testing policy will be examined by an employment tribunal. The key message is that a positive drugs test cannot be treated as a ‘black or white’ situation, and employers should not adopt a rigid approach either to the evidence or to the terms of their own policy.  

The content of this article is for general information only. For further information please contact Liz Stevens or a member of Birketts' Employment Law Team.

This article is from the December 2018 issue of Employment Law Update, our monthly newsletter on employment legislation and regulation. To download the latest issue, please visit the newsletter section of our website. Law covered as at December 2018.

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