In Ball v First Essex Buses Limited, a bus driver who was dismissed after testing positive for cocaine has won compensation of almost £40,000 at an employment tribunal.
Mr Ball, who suffers from type-2 diabetes and high blood pressure, worked as a driver for First Group for more than 20 years. He said the drug could have got into his system when he licked his fingers after accepting notes from students. A random drugs test showed that he had traces of the Class A drug in his saliva. To prove his innocence, he submitted a hair follicle test that showed no trace of cocaine, but it was dismissed as evidence by the bus company.
An employment judge agreed that he could have tested positive after handling contaminated bank notes (apparently four out of five bank notes can test positive for traces of cocaine, according to experts). Mr Ball would often lick his sore fingers at the wheel, because he had to prick them with needles every two hours to monitor his blood sugar levels. As a man in his 60s with his medical conditions, Mr Ball said it would have been “reckless” for him to take cocaine as it could lead to heart problems and a stroke.
Peter Stanway, our BackupHR™ legal expert comments:
The Employment Tribunal held that First Buses had acted unreasonably in reaching the decision to dismiss. They should have considered his health, the possibility of cross contamination as he had contended, the negative hair follicle tests, and Mr Ball’s offer to be re-tested. The Employment Tribunal also noted that First Buses had failed to follow its policy which said that it would take all evidence into account. The judge said First Essex had “closed their minds” to considering any other explanations as to why their employee had tested positive. “The Respondent had no other reason to believe that the claimant had been on duty under the influence of cocaine and the claimant’s behaviour whilst on duty or at the time of the test, his demeanor, good character, longevity of service, exemplary service, age, and health condition were all contra-indicators. They closed their minds to all possible explanations that did not fit this predetermined conclusion.”
Although there was nothing in the Drug and Alcohol Policy that stated other tests should be considered, there was nothing within the procedures that stopped the Company from considering evidence that came from outside the Company. Managers had privately acknowledged this possibility in communications but would not admit ‘new evidence’.
There is a positive obligation on the employer to consider all aspects of an employee’s case.
Although failing a drug test is likely to be gross misconduct, the process followed in dismissing an employee and considering appeals must also be fair and employers must follow a fair process in all circumstances. Just because the offence is serious does not mean that a harsh approach has to be taken. Given the seriousness of the accusations and the potential impact, then employers should be flexible and be open to deviating from ‘normal’.
It is sensible to take a firm approach with drug and alcohol issues particularly where there are safety implications, but firm should not mean rigid and unthinking.
- Follow your procedure and the ACAS Code of Practice.
- Investigate thoroughly and impartially.
- Be prepared to deviate when necessary to consider evidence contrary to your evidence.
- Keep an open mind.
- Consider any mitigating factors when giving your decision.
The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for a free initial chat on 01480 677980.