In Ball v First Essex Buses Limited ET 3201435/2017 the Employment Tribunal (ET) held that a bus driver was unfairly dismissed for gross misconduct when he failed a routine drug test.
Mr Ball, the Claimant, was employed as a bus driver by the Defendant from December 1996 to July 2017. He was a 61-year-old diabetic with high blood pressure and had to check his blood sugar levels every two hours by carrying out a blood prick test to his fingers. The defendant’s Drugs and Alcohol Policy stated it could carry out random tests. One was performed on Mr Ball on 6 June 2017, a saliva test which showed positive for cocaine. Mr Ball denied he had ever taken the drug. He ventured that the saliva test might have been contaminated. He pointed out defects in the way the test had been conducted (for example he had not been required to wash his hands or wear gloves before handling the sample). Mr Ball also put forward the theory that since he handled money and licked his fingers to separate it, it was possible cocaine residue from the bank notes were in the sample. Mr Ball provided a subsequent hair follicle test which did not show any cocaine in his body. However, this was not considered because the laboratory which reviewed the tests concluded that since it takes 14 days for drugs to show up in a hair follicle, if Mr Ball had taken cocaine, the drug may have left his system.
A claim for wrongful and unfair dismissal was lodged in the ET.
This claim was upheld on the grounds that the defendant had not acted within the range of reasonable responses when carrying out its investigation or when deciding to apply the sanction of dismissal. Several flaws were found in the investigation process including the fact the defendant failed to follow their own disciplinary procedure which stated it would carefully consider all evidence submitted by the employee.
The ET rejected First Essex’s argument that it was not required investigate the failed drug test further. The drugs and alcohol policy indicated that a failed drugs test might lead to dismissal but that a consideration of all the circumstances was required. The issue of contamination had arisen, and a hair follicle supplied. The ET stated that, given these circumstances, a reasonable employer would have retested. In addition, the defendant had not passed the test for fair dismissal set out in British Home Stores Ltd v Burchell  IRLR 379 (the ‘Burchell’ test). This test states a dismissal for misconduct will only be fair if:
- The employer believed the employee to be guilty of misconduct.
- The employer had reasonable grounds for believing that the employee was guilty of that misconduct.
- At the time it held that belief, it had carried out as much investigation as was reasonable.
Employers should be wary of treating the results of a drug test as ‘black and white’. In this case, the employer was closed-minded to the evidence presented by the employee. To avoid a claim being brought, it is imperative to ensure that common sense prevails, especially in such a case as this, where the employee had an exemplary record, and not to be too rigid in applying the policy. In addition, if evidence contradicting the drug test is presented, it should be carefully considered, and this process documented.