Julie Duane, Solicitor Advocate at CG Professional.
In this article, we explore the case of Ball v First Essex Buses Ltd, following dismissal for gross misconduct of a long-serving employee who failed to pass a routine drug test.
The Claimant in this matter is a 61-year-old diabetic employee, who had high blood pressure and an unblemished disciplinary record. The Claimant had been employed by the respondent for over 20 years as a bus driver.
In accordance with the Respondent’s policies and procedures, it was able to conduct and carry out random drug tests on saliva samples of its employees. During a random test, the Claimant tested positive for traces of cocaine in his system. The Claimant sought to mitigate his position and argue that because he was a diabetic and would often routinely sample his blood pressure levels by using the prick tester, that there was a high possibility that this reading could have been caused by contamination. The Claimant went on to explain that he believed that by handling cash from a variety of sources, in conjunction with licking his fingers after having carried out a blood test, this would cause a false reading.
The Claimant also produced additional evidence at the hearing regarding the results of his own drugs test, including a hair follicle test, which proved negative for cocaine. It should be noted that follicle tests are deemed to be more accurate than saliva which is why they are generally accepted by the Courts.
Despite the evidence provided by the Claimant, he was placed on suspension and subsequently invited to disciplinary hearing whereby he was dismissed for gross misconduct. The Claimant subsequently appealed that decision but again was unsuccessful as the initial decision was upheld.
Employment Tribunal’s Decision
The Employment Tribunal considered the evidence and held that the Claimant had been unfairly dismissed accruing losses of over £37,000. In reaching its conclusion the Tribunal drew attention to the following errors in the Respondent’s process, most notably:
- the Respondent had erroneously advised the Claimant that it was not within its policy to recognise alternative tests. Notably, this was not an issue covered within their own policy;
- the Respondent had failed to act in accordance with its own policy by failing to take into consideration any mitigation presented by the Claimant;
- no consideration as to the Claimant’s unblemished record and previous history with the organisation had been taken into consideration. It is also noted that during cross-examination the General Manager accepted that he was under undue pressure to reach a predetermined decision to dismiss the Claimant;
- the Respondent had failed to conduct the tests by using gloves and did not wash their hands in between tests which could have caused the contamination complained of; and
- The Respondent failed to take into any into consideration, or assess, the evidence presented by the Claimant regarding the suggestion of cross-contamination and why that could and/or could not be believed.
It is also noted that the allegation against the Claimant was that he was on duty under the influence of illegal drugs which amounted to gross misconduct, however it was noted that the policy did not state this related to failing a random drug test. As there was no other evidence other than the drug test provided that the Claimant had been under the influence of cocaine, the veracity of the allegations were questioned.
Note for employers
Employers should, therefore, ensure that an appropriately drafted disciplinary policy and drugs and alcohol policy covers the salient issues which they would seek to rely upon should the matter proceed to a disciplinary hearing. It isn’t for the employer to insert wording into a policy which is not there in the first instance.
Equally any mitigation presented by employees during a disciplinary hearing, or another process, should be considered in full and reasons as to why that information is either not being considered further, or is held to be irrelevant, should also be outlined so that there is a clear conclusion on how those decisions have been reached.
It also reminds employers of the importance of not having a predetermined decision. Employers should also ensure that the tests undertaken are carried out appropriately in order to reduce the possibility of cross-contamination.
If you have any questions regarding the contents of this article, please do not hesitate to contact a member of the CG Team who would be more than happy to assist.