The case of Ball v First Essex Buses Limited is a good example of how not to fairly dismiss someone accused of serious misconduct.
Mr Ball had worked as a bus driver with the company for over 20 years. He had diabetes and rheumatoid arthritis and took prescribed medicines to help with symptoms.
The company randomly tested their driving staff for drugs. After a busy shift, Mr Ball was tested and traces of cocaine were found in his saliva. He denied taking illegal drugs and was suspended. He then privately arranged for a hair follicle test which was clear. The employer then re-tested the original saliva sample, which again showed traces of cocaine.
Mr Ball said that the original test could have been contaminated in a number of ways. In particular, he handled a lot of cash that day and had licked his fingers (which were sore and bleeding) to count it. He said that many bank notes contain traces of cocaine and this was likely to be the reasons for the positive result.
His employer refused to accept the results of the hair follicle test (in breach of its own policy) and dismissed Mr Ball without notice. During the appeal Mr Ball offered to undertake any further test to “demonstrate his innocence”. Despite this, the company upheld his dismissal.
Unusually, the company offered a further appeal. Mr Ball obtained another hair follicle test (which again was negative) and used this to again argue that he should not have been dismissed.
The appeal manager did go back to the lab used by the company to ask whether they could explain the difference between the results of the saliva and hair tests and to comment on the issue of cross contamination caused by handling money and accepted their opinion. Mr Ball was not given copies of the letter to the lab or given an opportunity to comment on its opinion.
Mr Ball said that his dismissal was unfair and amounted to a breach of contract.
The tribunal upheld his claims. The employers conduct was “so unreasonable” it fell outside the band of reasonable responses. It should have considered Mr Ball’s good character, health, the possibility of cross contamination, negative hair follicle tests and his offer to be re-tested by his employer. It had no reason to believe Mr Balls’ performance had been impaired and it should have used its “common sense” rather than treating the issue as “black or white”.
There’s no dispute that failing a drug test is a potential misconduct issue. But, this employer got it badly wrong. It ignored its own policy and the process it followed wasn’t fair.
It demonstrates that employers have to act fairly and, whilst offering two appeals appears to be generous (under the ACAS Code of Practice employers must offer one appeal), if the same mistakes are repeated the dismissal will be unfair.
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Shah Qureshi, head of employment and professional discipline at Irwin Mitchell’s London office, spoke to People Management about the case. To read his comments or for advice, please telephone: 44 (0)207 400 8761 or email Shah: firstname.lastname@example.org.
Shah Qureshi, head of employment and professional discipline at Irwin Mitchell’s London office, told People Management the case was “quite the cautionary tale” for employers.
“There’s no dispute that failing a drug test is a potential misconduct issue,” Qureshi said. But he added test results need to be considered alongside other evidence, including an employee’s disciplinary record, evidence that could dispute the test and the accuracy of the test itself. Employees also need to be informed on what basis any claim of misconduct was being made.”