In Ball v First Essex Buses Limited, an Employment Tribunal found that a bus driver was both unfairly and wrongfully dismissed after his employer carried out a flawed investigation prior to dismissing him for gross misconduct for failing a routine drug test.
Facts
First Essex Buses Limited (“First Essex”) had a Drug and Alcohol policy that permitted random drug testing. Mr Ball, a 61 year-old bus driver with more than 20 years’ service, was selected for testing and underwent a saliva test which came back positive for cocaine. Mr Ball was subsequently suspended pending a disciplinary hearing.
Mr Ball contended that he was not a drug user. He suffered from hypertension and diabetes and suggested that the sample could have been cross-contaminated as a result of him handling contaminated money and licking his fingers to relieve soreness caused by checking his blood sugar levels every 2 hours. He also asserted that the way in which the testing had been conducted was haphazard and defective in that he was not required to wear gloves or wash his hands prior to handling the sample.
Mr Ball provided to First Essex the results of two private hair follicle tests as evidence of his innocence, both of which tested negative for cocaine. First Essex dismissed the results of the hair follicle tests and took the decision to dismiss Mr Ball for gross misconduct based on the results of the saliva test. Mr Ball lodged two appeals against his dismissal, both of which were unsuccessful.
Mr Ball lodged a claim for wrongful and unfair dismissal in the Employment Tribunal.
Decision
The Employment Tribunal found in favour of Mr Ball, holding that First Essex had conducted a flawed investigative process and failed to act within the range of reasonable responses when deciding to dismiss Mr Ball. First Essex had adopted a narrow view towards the available evidence and ignored all offers from Mr Ball to undertake further tests, in breach of its own disciplinary procedure. In particular, the Employment Tribunal noted the following:
- First Essex had stated that it did not recognise alternative tests but there was no mention of this in the policy. First Essex also failed to bring to Mr Ball’s attention the fact that he could challenge a positive result under the policy.
- Failing a drugs test was not cited as an example of gross misconduct in First Essex’s Disciplinary policy. Instead First Essex relied on the results of the saliva test as evidence of Mr Ball being under the influence of illegal drugs (which would amount to gross misconduct) despite First Essex having no reason to believe this was the case as Mr Ball’s good character, long service and health conditions were all indicators to the contrary.
- There appeared to be an absence of a genuine belief in Mr Ball’s guilt given his age, state of health, length of service and exemplary disciplinary record.
- The Tribunal was concerned by the behaviour and influence of senior management in the decision-making process.
- Various further enquiries were made throughout the process that were not disclosed to Mr Ball.
The Employment Tribunal concluded that Mr Ball’s dismissal was both unfair and wrongful and he was awarded ongoing losses for a period of three years. The Tribunal held that a reasonable employer would have at least re-tested the employee, particularly given that Mr Ball was a long serving employee with an unblemished disciplinary record and there was a clear discrepancy between the results of the hair follicle and saliva tests.
Comment
This decision has no binding effect but serves as a useful reminder of the importance of a carefully worded disciplinary policy and the need to avoid pre-determining the outcome of any disciplinary process. Despite having what appears to be conclusive evidence, employers should still exercise good judgment when considering whether dismissal is reasonable in the particular circumstances.
Hollie Ryan