138: Dismissal of a bus driver who failed a routine drugs test was unfair dismissal

The recent Employment Tribunal decision in Ball v First Essex Buses Limited illustrates the importance of following a fair and transparent procedure before taking a decision to dismiss for misconduct and of keeping an open mind to evidence presented by the employee. In this case, a bus driver was held to be unfairly dismissed for gross misconduct where he had failed a routine drugs test.

Mr Ball was employed as a bus driver with First Essex Bus Limited. A saliva sample taken from him in accordance with the company’s Drug and Alcohol Policy tested positive for cocaine, resulting in his immediate suspension. Mr Ball informed the company that he had never taken drugs other than those prescribed to him and pointed out that it would be reckless for him to take cocaine given that he was 60 years old and is an insulin-dependent diabetic with hypertension. At the initial fact-finding meeting and again during the investigation and disciplinary procedure, Mr Ball’s representative raised concerns about the reliability of the saliva test. These concerns were not followed up by the company, although a further test on a second saliva sample confirmed the presence of cocaine.

During the investigation, Mr Ball wrote to the company, stressing again that he had never taken cocaine. He suggested that the positive test was due to cross-contamination from handling bank notes, pointing to research which found that 80% of bank notes in circulation are likely to be contaminated with drugs. Mr Ball also stressed that he often licked his fingers due to soreness from two-hourly blood prick testing for his diabetes. A hair follicle test arranged by Mr Ball was negative for cocaine but First Essex rejected this result because it was not an approved test under its Drug and Alcohol Policy. Following a disciplinary hearing and two appeals, Mr Ball was summarily dismissed for gross misconduct.

The Employment Tribunal upheld Mr Ball’s unfair dismissal claim. It rejected the company’s argument that it was not required to look beyond a failed drugs test and investigate further. Since the Drug and Alcohol Policy stated that a positive test ‘may’ lead to dismissal, all the surrounding circumstances should have been considered. However, the dismissing officer and two appeal officers had taken the result of the test to indicate that Mr Ball had taken cocaine, and closed their minds to the possibility of contamination and any alternative explanations. The Policy also set out a procedure to challenge a positive test which had not been followed. In the Tribunal’s view, the company’s rejection of the negative hair follicle test was illogical, grossly unfair and in breach of its disciplinary procedure. The Tribunal concluded that it was outside the range of reasonable responses for the company not to conduct further inquiries, particularly where an employee with over 20 years’ unblemished service was facing a career-ending dismissal. The Tribunal also noted that Mr Ball had been dismissed for being under the influence of cocaine whilst on duty. However, there was nothing in his behaviour, character or history to indicate this, and advice from the company’s laboratory was that the amount of cocaine detected was so small that he could not be said to be under the influence of illegal drugs.

This case illustrates that employers may need to look beyond a failed drugs test to consider all surrounding circumstances, including the reliability of the test itself and any alternative explanations or mitigation put forward by the employee, even where public safety may be an issue.