Drug test failure – fair to dismiss?

Is it fair to dismiss an employee in the transport industry who fails a drugs test? Not always, said the employment tribunal recently. Ball v First Essex Buses looked at the range of reasonable responses test in conduct dismissals and shows how an employer can come unstuck even in seemingly clear-cut cases.

A bus driver was dismissed for failing a drugs test. He had been employed for 20 years with an unblemished disciplinary record. He was diabetic. He did finger prick blood tests throughout the day and would lick his fingers to stop the bleeding. His bus route took in lots of students and he handled lots of cash. He argued that his drug test had been contaminated by cocaine on bank notes. He also argued that the test was conducted without gloves or prior handwashing and so was open to contamination. He provided his own drug tests which tested negative for cocaine.

The employment tribunal found that the employer's decision to dismiss was not within the range of reasonable responses. The employer made mistakes about their own drug and alcohol testing policy during the dismissal process. They failed to follow their own procedures, which said they would take an employee's own evidence into account. There were also flaws in the investigation. Given the issues of contamination and the employee's own negative tests, the employer should have undertaken additional investigation.

It might seem surprising that an employee in the transport sector who fails a drugs test can win an unfair dismissal case. Employers should not take drug test results as gospel especially in the face of conflicting evidence and contamination issues. Employers should also ensure that managers know the detail of company procedures and follow them religiously.

Leyton Legal