An employment tribunal has ruled that a bus driver was unfairly dismissed when his employer dismissed him for gross misconduct after he failed a drugs test.  There were no indications that the driver had been under the influence of drugs but, the employer refused to entertain the idea that the test was anything other than incontrovertible.

Facts

In Ball v First Essex Buses Limited, the claimant was a 61 year old bus driver, who was a diabetic.  He failed a routine drug test administered by his employer and was dismissed for gross misconduct.  The employer refused to consider that the test result could have been wrong or, that the sample could have been contaminated.  It refused to take into account the employee’s own drug test.  Consequently, the tribunal considered that the employer’s investigation was flawed.

In addition, the tribunal held that the employer was wrong to dismiss for gross misconduct as it had characterised the situation as being under the influence of drugs, even though there was no evidence of this.  The correct approach in this situation would have been to characterise the situation more neutrally and dismiss for failing a drugs test, which could potentially have been a fair dismissal for some other substantial reason (SOSR).  The dismissal was also a wrongful dismissal, and the claimant was entitled to his notice pay.

Lesson for employers

It’s becoming increasingly common for employers to require staff to submit to drug testing in the workplace as drug use becomes more prevalent in society.  While it might be expected that employers would adopt a “zero tolerance” approach to positive results, particularly in sectors involving driving or use of machinery, this case demonstrates the pitfalls for employers in doing so.  At the very least, a fair and thorough investigation into the results will be needed if the employee challenges them and puts forward credible arguments that the test could be wrong.

Following such an investigation, an employer may still be able to decide to dismiss and to do so fairly if it characterises the dismissal correctly.  This will always depend of the facts of each case which will need to be carefully considered to avoid falling foul of employment law.

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Updates: For employers: Unfair and constructive dismissal | For employees: Breach of contract | Unfair dismissal |

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