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29th November 2018

Tribunal Tale – Ball v First Essex Buses Ltd

Background

Many employers in sectors that involve driving, using machinery or are otherwise safety-critical operate alcohol and drug testing to ensure that their employees are working safely.

Some opt for ‘random’ testing, which involves selecting a number of employees on a regular basis for testing. Others implement ‘for cause’ testing, which generally means that they ask an employee to undergo a test if they have reason to believe that they may be or have been under the influence of alcohol or drugs.

This sort of testing is lawful, and clearly justifiable if the employee is operating a subway train, school bus or dangerous machinery. It can also be lawful for an employer to dismiss an employee in the event of a positive result. However, the overriding requirement when considering dismissal is for the employer to act reasonably in all the circumstances, and even a positive test result could have a plausible explanation or otherwise be unreliable.

Failing to take that into account can lead to a finding of unfair dismissal, as First Essex Buses (FEB) learned in this case.

The facts of the case

Mr Ball was a bus driver who began working for FEB in December 1996. Mr Ball’s role meant that he had to undertake alcohol and drug tests when asked. He is diabetic, which requires him to regularly prick his fingers to test his blood sugar.

On 6 June 2017, when he was 60 years old, Mr Ball was asked to submit to a drug test, which involved his saliva being examined. The test came back positive for cocaine, and FEB then suspended him and invoked its disciplinary procedure. On 17 June 2017, Mr Ball arranged for a hair follicle test to be carried out at his own expense, which showed no trace of cocaine.

However, FEB did not take Mr Ball’s own test into account at any of the investigation meetings or the disciplinary hearing, stating that it was not within their procedures to recognise such tests. The disciplining officer also ignored points put forward in mitigation by Mr Ball’s representative, such as possible cross-contamination of the saliva sample. Following the hearing, Mr Ball was dismissed for gross misconduct, but the dismissal letter gave no explanation for that decision.

Mr Ball appealed, and his first appeal was heard on 8 August 2017. At the appeal hearing, Mr Ball questioned the testing process, including that he had not washed his hands before handling the swab and that he did not wear gloves while the test was being carried out, which could have caused cross-contamination.

It was also put forward that Mr Ball often licked his fingers due to his skin prick tests, and that on the day of the test he had picked up a lot of students and handled banknotes, which could also have contained traces of cocaine. Put together, those circumstances could have resulted in the cocaine that was found in his saliva. However, as before, those potential explanations were ignored by the appeal officer, as was Mr Ball’s own drug test. Accordingly his appeal was dismissed.

On 17 August Mr Ball arranged for another hair follicle test to be undertaken, which again showed no traces of cocaine. He then raised another appeal, which was heard on 29 August 2017. His evidence was again ignored at the appeal, which was not upheld. Mr Ball then claimed unfair dismissal.

The ET’s decision

The Employment Tribunal (ET) harshly criticised FEB’s approach to the disciplinary process, stating that it was ‘illogical, grossly unfair and in breach’ of FEB’s contractual disciplinary procedures to ignore the private tests that showed no cocaine in Mr Ball’s hair follicles.

The ET also found that the employees who heard the disciplinary hearing and appeals had ‘closed their minds to all possible explanations’ that did not fit their predetermined conclusion. Those employees appeared before the ET, and the ET found in general that they were not credible as witnesses, as some of their statements were either inconsistent with other evidence or not supported by the process that had been followed.

The ET also noted that FEB had no reason to believe that Mr Ball had taken drugs that day, as well as his long and unblemished service of over 21 years with the company. In addition, Mr Ball had high blood pressure, which made it unlikely that he (at age 60) would take cocaine.

In general terms, the ET found that FEB’s conduct was not that of a reasonable employer. Taking into account his current and future losses, the total compensation awarded to Mr Ball was just under £38,000.

What does this mean?

This case did not have a surprise ending and does not constitute any change to the law of unfair dismissal. FEB based all of its decisions on its own potentially compromised saliva test and repeatedly ignored Mr Ball’s own, generally more reliable, hair follicle tests.

The documentation and witness evidence showed that FEB had never been open to any outcome other than dismissal, and that those chairing the relevant appeals had been guided by senior management and HR to discount Mr Ball’s evidence and statements in mitigation. As such, there really could not have been any other outcome to his claim.

The case does however serve as a reminder that a positive drug or alcohol test should not be the only piece of evidence relied on by an employer, particularly where the employee has provided two other impartially conducted tests that clearly contradict any test conducted by the employer.

The ET will generally be scathing of any employer that conducts a disciplinary process from so obviously a predetermined perspective, especially where any witnesses are not credible. Employers must be seen to conduct such processes with an open mind, and be at least willing to consider other explanations for positive test results, particularly when faced with the notion of a 60 year old man with high blood pressure taking cocaine before driving a bus.

A closed mind in such cases will generally have the same result as Mr Ball’s, with the resultant compensation to be paid.

If you have any questions on any of the issues raised in the above article, please contact Seanpaul McCahill.

29th November 2018