Toot toot! Bus driver unfairly dismissed for failing drugs test
Friday 14th December 2018
A bus driver’s dismissal for gross misconduct following the failure of a routine drugs test was unfair, so ruled the employment tribunal in Ball v First Essex Buses Limited.
In order for a dismissal to be fair it must be for a potentially fair reason, and the employer must have acted reasonably when treating the reason(s) as sufficient to justify the dismissal. This includes a requirement to follow a fair procedure. An investigation into potential misconduct must be sufficient so that the allegations are clear and can be responded to. More serious allegations should have correspondingly more thorough investigations.
Mr Ball is a 61 year old diabetic who had worked for First Essex Buses Limited (‘FEBL’) for 21 years when a saliva sample tested positive for cocaine following a random test. Mr Ball denied he had ever taken drugs, offered a number of alternative theories as to how the drugs could apparently have entered his system, and also provided the results of his own hair follicle test. FEBL rejected his arguments and his test, and his dismissal was confirmed following two appeals against the decision.
Decision and comment
The Tribunal upheld Mr Ball’s claims for wrongful and unfair dismissal. It found that the employer had made various errors during the investigative process, notably in declining to further investigate the failed drugs test despite Mr Ball’s long and unblemished employment record, despite being presented with alternative theories. This had the effect of FEBL closing its mind to any outcome other than guilt and meant it had not acted reasonably.
This case highlights that employers would be unwise to place all their eggs in the basket of a single failed drugs test, even where public safety could be at stake. Being unwilling to investigate further can show an element of predetermination that will not find favour in an employment tribunal. This will particularly be the case where the seriousness of the allegation and the surrounding facts are such to warrant a greater degree of investigation.