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Dismissing a Bus Driver for Failing a Drugs Test Was Unfair

on Friday, 30 November 2018.

In Ball v First Essex Buses Limited the Employment Tribunal (the ET) found that the decision to dismiss Mr Ball, a bus driver who had tested positive for cocaine, was unfair...

How can employers be sure that they are conducting a fair investigation and process when dealing with misconduct in the workplace?

What Happened?

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.

Guidance on Handling Allegations of Misconduct

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?

  • Disciplinary Policy - ensure that there is a clear and fair disciplinary policy in place. This should include details of the standards of conduct expected of employees and the procedure that will be followed and possible consequences should an employee's conduct come into question. Just as important as having the policy, is following the policy.
  • Be open minded - no matter how open-and-shut a matter may appear at first glance (such as an employee testing positive for cocaine) employers must ensure that they have not already decided that they are going to dismiss the employee before following the disciplinary process.
  • Keep the employee informed - ensure that the employee is adequately informed of the allegations against them, and be careful to ensure that these are framed correctly. Ensure meetings are scheduled so as to give employees the opportunity to gather evidence to support their case and inform them of their right to be accompanied.
  • Consider all of the evidence - when carrying out the investigation, ensure this is thorough and includes evidence that both corroborates and contradicts the case against the employee. Ensure the disciplinary officer engages with the any further evidence provided by the employee and gives reasons for why any is discounted. 
  • Look at the big picture - consider all the circumstances, including the employee's record and character. If an allegation seems unlikely (such as a 61 year old with a 20 year unblemished record who is on medication engaging in recreational drug-use) more evidence may be needed before an employer can be reasonably satisfied of an employee's guilt.
  • Appropriate - the process followed should be proportionate in the circumstances. A relatively minor matter will not require as much investigation as a more serious one.
  • Appeal - provide the employee with an opportunity to appeal the decision. If the original investigation was insufficient, a thorough and fair appeal could resolve this.

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.

For further information on employment issues, please contact Lorna Scully in our Employment Law team on 0121 227 3719.