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Dismissal for failed drugs test was unfair

The Employment Tribunal in the case of Ball v First Essex Buses Ltd has found that a bus driver was unfairly dismissed after failing a drugs test.

Background

The Claimant was a 61 year old diabetic with over 20 years exemplary service. He was selected to undergo a random drugs test in accordance with First Essex Buses Ltd (“the Company”) Drugs and Alcohol Policy.

The Claimant provided a saliva test which produced a positive result for cocaine. The Claimant protested his innocence, denying that he had ever used drugs and highlighting that the test may have been contaminated. The Claimant argued that he had not been required to wash his hands or wear gloves when handling the saliva sample but he had been handling bank notes during his shift that could have been contaminated with cocaine. Furthermore, the Claimant argued that the cocaine could have got into his saliva from handling the banknotes then licking his fingers (which he did often due to the diabetes blood prick tests).

To prove his innocence, the Claimant provided the Company with the results of a hair follicle test that he had paid for privately and which showed no trace of cocaine in his system.

The Claimant was invited to a disciplinary hearing where the Claimant was dismissed for gross misconduct. The results of the hair follicle test were rejected as they were not carried out by the Company’s tester.

The Claimant appealed twice against the dismissal but in both instances the dismissal was upheld. The Company consulted with the testers of the saliva sample who indicated that it was unlikely that a positive result could be produced in the way that the Claimant alleged. The hair follicle test was not taken into account at either of the appeals.

The Claimant submitted a claim for wrongful and unfair dismissal.

Decision

The Employment Tribunal found the Claimant had been wrongfully and unfairly dismissed. It held that the Company’s investigation and decision had not been within the band of reasonable responses.

The Employment Tribunal found the process flawed on numerous points and that a reasonable employer would have re-tested the employee given the doubts raised, the seriousness of the accusations and the potential impact it would have on the Claimant.

The Claimant was awarded almost £40,000 in compensation.

Comment

Employers need to carry out as much investigation as is reasonable in the circumstances which includes considering any conflicting evidence that may be produced by an employee facing disciplinary proceedings. Evidence put forward by an employee in disciplinary proceedings should not be simply ignored as this could indicate a pre-determined outcome and lead to a finding of unfair dismissal.

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