How can employers be sure that they are conducting a fair investigation and process when dealing with misconduct in the workplace?
Mr Ball had worked for First Essex Buses Limited (the Company) for over 20 years as a bus driver. He was aged 61, diabetic, and had high blood pressure, and an unblemished 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. The Company suspended Mr Ball, conducted a disciplinary hearing and, relying on the results of the drug test, dismissed him for gross misconduct.
The ET held that the Company's decision to dismiss was unfair for a number of reasons. It held that the Company had failed to take into account aspects of Mr Ball's evidence, including his explanation that the test could have been contaminated due to his handling of bank notes which may have held traces of cocaine and then licking his fingers after testing his blood sugar levels with a finger-prick, and by discounting two hair follicle drug tests that Mr Ball had obtained, which showed no cocaine in his system. It considered that the Company had also failed to take into account 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. The Tribunal were also concerned that the Company had erred in its framing of the allegation as potential gross misconduct, when the Company 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.
As the process followed by the company was found to be unfair, so too was the dismissal.
Although this is a first instance decision, it does provide a useful reminder of how, and how not, to deal with misconduct allegations, and we have provided some guidance on this below.
When tribunals assess the fairness of a conduct dismissal, they judge whether the employer has followed a fair procedure and whether the decision to dismiss was within the range of reasonable responses open to them. The key questions the Tribunal will consider are whether the employer honestly believed that the employee was guilty? Whether the employer had reasonable grounds for holding that belief? And whether a reasonable investigation had been carried out?
Acas guidance is also available, which again promotes a common-sense approach to handling such matters. What is key is the process and investigation. If this is thorough and fair, then the decision reached at the end is likely to be.