Dismissal for failing drug test was unfair

Ball v First Essex Buses Ltd

The dismissal for gross misconduct of a long-serving employee for failing a routine drug test was unfair.

Background

Mr Ball had worked for First Essex Buses (FEB) for over 20 years as a bus driver. He was 61, diabetic, had high blood pressure, and an unblemished disciplinary record.

It was company policy to carry out random drugs tests on saliva samples, and Mr Ball’s test results came back positive for cocaine. He protested his innocence and argued that the test may have been contaminated, pointing out defects in the way it had been conducted – no hand washing before the test in keeping with European standards.

He also said that as he handled cash, it was possible that any notes may have been contaminated with cocaine, especially as he often licked his fingers after blood tests for his diabetes to stop the blood. He provided FEB with the results of two of his own drug tests (a hair follicle test) which proved negative for cocaine. Hair follicle tests are considered more reliable than saliva which is why they are accepted by the courts. FEB suspended Mr Ball, conducted a disciplinary hearing and, relying on the results of their drug test, dismissed him for gross misconduct. He appealed unsuccessfully although the appeal officer did doubt that a 61-year old diabetic with high blood pressure would be taking cocaine recreationally. Mr Ball lodged a claim for wrongful and unfair dismissal.

Tribunal decision

The tribunal upheld both of Mr Ball’s claims and awarded him ongoing unfair dismissal losses of over £37,000.

FEB had not acted within the range of reasonable responses when conducting its investigation or when deciding to apply the sanction of dismissal. The flaws in FEB’s process included:

  • In rejecting Mr Ball’s own test, FEB had erroneously told him that it wasn’t within its policy to recognise alternative tests. The policy did not actually cover this issue.
  • FEB had acted in breach of its own disciplinary procedure which stated that it would carefully consider any evidence submitted by an employee.
  • FEB had failed to consider the full picture of Mr Ball’s employment record and circumstances and that the disciplinary officer appeared to have been unduly influenced by the General Manager who gave indications of having prejudged the outcome of the process.
  • During the disciplinary hearing, the manager had adopted a blinkered view towards the evidence, refusing to be drawn into arguments about cross-contamination of the saliva sample.
  • Mr Ball was dismissed for gross misconduct but FEB’s policy specified that ‘being on duty under the influence of illegal drugs’ was gross misconduct, not failing a random drug test, and there was no evidence, other than the drug test, to support the assertion that Mr Ball had been under the influence of cocaine.
  • When further investigations took place during the appeal process, Mr Ball wasn’t told of what these were or given the opportunity to comment.

Link to decision: https://www.bailii.org/uk/cases/UKET/2018/3201435_2017.pdf

Comment

Although this is only a tribunal decision and not binding on any other case it contains important reminders: the importance of a carefully worded disciplinary policy, even if not contractually binding, is highlighted by this case. If the employer intended failing a drugs test to be gross misconduct its policy should have said so.

Also, it is a reminder that during an investigation, evidence to support an employee should be sought as well as evidence to implicate them. Provided an alternative explanation is not so far-fetched as to be unbelievable, employers are expected to investigate.

Here, all the evidence pointed towards closed minds on the part of the company, which had one outcome in mind and this was guided by senior management and HR and so there could be little evidence of a fair process, making the dismissal unfair.

See also our Guide to Handling Misconduct.