In a timely reminder that when investigating misconduct all is not as it first appears, Hannah Gumbrill looks at the case of Ball v First Essex where a bus driver was dismissed following a positive test for cocaine.
An Employment Tribunal has awarded a bus driver who was dismissed for testing positive for cocaine £38,000 upholding his claims for unfair dismissal.
Mr Ball had been a bus driver for First Essex for over 20 years when he tested positive for traces of cocaine in his saliva during a random drug test. Throughout the HR process, Mr Ball stated that he had never taken any drugs, noted that considering his age and underlying health conditions (he was an insulin dependent diabetic with hypertension) it would be reckless to do so, and put the positive reading down to cross contamination citing a number of flaws in the drug test procedure.
He arranged for two hair follicle tests to take place – a method of drug testing that is viewed as more reliable than saliva testing – and offered to be retested.
He also provided an explanation for the presence of cocaine in his saliva: that 80% of bank notes in circulation are contaminated with drugs, that he had been handling notes prior to the drug test, that he had to prick his fingers for a diabetes test every 2 hours which involved him licking his finger, and that this could have caused a misreading.
First Essex refused to accept the results of the two hair follicle tests (which were both negative), did not engage with any mitigating factors (among other things, Mr Ball’s exemplary service record) and did not undertake any further investigation of the circumstances other than updating Mr Ball’s medication details and listening to his explanation of the positive test result.
The Employment Tribunal found in favour of Mr Ball. First Essex had not acted within the range of reasonable responses when carrying out its investigation or when dismissing Mr Ball. In particular they had failed to respond to his alternative explanation – sticking to the line that their positive saliva test was sufficient to prove he had taken cocaine and had not analysed their own disciplinary policy properly – by equating being under the influence of cocaine at work (which was expressly gross misconduct) with the mere presence of cocaine in a test (which was not expressed as gross misconduct).
In essence the employer pre-judged the evidence presented by the employee and was closed minded – an employer must always be looking (and seen to be looking) for evidence of innocence as well as guilt.
