Bus Driver Unfairly Dismissed Despite Positive Drug Test

Mr Kenneth Ball was a 61 year old who suffered from diabetes and hypertension with a 20 year exemplary employment record when he was dismissed by First Essex Buses Limited for failing a random drug test.

Key Facts of the case

First Essex Buses had a policy of random drug testing, Mr Ball was subject to such a test using his saliva, which returned a positive result for cocaine.

Mr Ball was shocked at the result, not only did he insist he had never taken recreational drugs he attempted to prove his innocence by financing privately two hair follicle drug tests which are widely known to be more accurate than saliva drug tests. His employer, failed to accept or even consider the evidence provided by the other two tests.

The investigation also failed to take into account possible cross contamination. Mr Ball had just finished his shift at the time of the test, he had been handling cash and regularly licked his fingers. As a diabetic, he had to take blood samples every two hours resulting in sore fingertips which he put into his mouth to relieve the soreness. Despite this Mr Ball was not able to wash his hands prior to the test in line with EU and laboratory guidelines.

The tribunal awarded nearly £40,000 in compensation for wrongful and unfair dismissal.

What does this mean for employers?

Testing procedures - The case is a reminder to employers to ensure any drug and alcohol testing carried out is consistent and procedurally sound.

Fair process - The tribunal ruled that the minds of those making the dismissal decision were closed. There was little evidence that a fair process was followed.

Reasonable decision - It is not safe to assume that a positive test automatically means a dismissal. The decision to dismiss must be reasonable in all the circumstances. In this case the employer at one point agreed it was unlikely Mr Ball at 61 with considerable health issues was a recreational drug user.

Avoid judgment - Considering evidence which both proves and disproves an allegation is essential in a fair procedure. Disregarding evidence will give the impression of prejudgement, particularly where that evidence is in favour of the employee. In this case not only were the private drug tests ignored but so was the exemplary record, no attempt was made to look at absence and performance records or speak with colleagues.

Policy - Ensure your policy is well written and followed. First Essex Buses breached their own disciplinary policy which stated it would consider all evidence. In addition whilst “being on duty under the influence of illegal drugs” was listed as gross misconduct, failing a random drug test was not listed as gross misconduct. There is a huge difference between traces of cocaine being found in a drug test and being under the influence. In this case there was no evidence of being under the influence.

Article last updated: 15 October 2019