(Photo: David McKay Photography/First Essex Buses Ltd/Wiki Commons)

An increasing number of employers have policies in place in relation to drugs and alcohol testing, and many of those provide an employer with the right to randomly test their employees for such substances. However, the issue which arises is how positive samples should be dealt with in circumstances where an employee denies that they are an accurate reflection of the position.

Mr Ball was a bus driver working for First Essex Buses Ltd. By June 2017, he had been employed for more than 20 years. He was 60 years old and suffered from diabetes and high blood pressure. Mr Ball was subjected to a random saliva blood test immediately after a busy shift. The results later came back positive for cocaine. Mr Ball (and management who knew him) were shocked at this result.

He denied that he had taken cocaine and suggested that it would be a very reckless thing to do given his age and health conditions. He suggested that it was possible that the result might have occurred due to contamination from handling cash (studies have shown that up to 80% of bank notes in circulation contain traces of cocaine). As a result of his diabetes, Mr Ball needed to undertake blood sugar tests every two hours using a pin-prick test; this meant that he had very sore fingers which he licked continuously to stop the blood.

There was, therefore, constant hand to mouth interaction which could have led to a contamination of the sample. He had not been given the opportunity to wash his hands prior to handling the swab. Additionally, in order to demonstrate his innocence, Mr Ball personally undertook two hair follicle drugs test. These look at drug use over an extended period and included the period when he failed the saliva test. Both tests came back negative for cocaine use.

Mr Ball was invited to an investigation by his employer. He reiterated his pleas of innocence and highlighted his negative hair follicle tests. He made clear that he was willing to subject himself to any such tests as his employer required. However, he was told that it was not within First’s policy to recognise hair follicle testing (although this was not the case – there was nothing in the policy which mentioned other forms of testing).

Mr Ball was therefore invited to a disciplinary hearing. The specific charge did not relate to the failure of the drugs test, but was put as ‘reporting for duty, or being on duty, under the influence of illegal drugs’. Prior to the hearing, the Operations Manager hearing the case was contacted by the General Manager, instructing him not to engage in any discussion about the hair follicle test. The Operations Manager did not consider the contamination arguments and decided, based on the failed drugs test, that Mr Ball should be dismissed with immediate effect. Mr Ball appealed, but that was also unsuccessful. The appeal manager decided that the hair follicle test did not have a ‘chain of custody’ to demonstrate its accuracy (although this was not the case) and that the failed saliva test was sufficient.

Mr Ball brought a claim for unfair dismissal in the Employment Tribunal (Case No: 3201435/2017). His claim was successful. The Tribunal was critical of a number of factors; they noted that the specific charge of gross misconduct related to being on duty under the influence of illegal drugs, but that aside from the failed test there was no other evidence that this had been the case.

There had been nothing in Mr Ball’s demeanour or behaviour to suggest that might have taken cocaine. In addition, he had provided a possible explanation which had not been fully analysed. The further evidence had he had provided had been disregarded for no good reason. Enquiries made at the appeal stage suggested that if the saliva test was positive but a hair follicle test was negative, this suggested very low levels of cocaine had been ingested. This was not given any real weight, and these enquiries were not shared with Mr Ball – which rendered the process unfair. An individual is entitled to know what the evidence is against them, and have the right to comment upon it or challenge it.

Finally, the tribunal was concerned about the influence of the General Manager on the process, even though he was not formally involved in the decision making. He was very keen to ensure that the hair follicle tests were not given any weight, despite the fact that in criminal proceedings, hair follicle tests carry greater weight than saliva tests.

As a result of all these factors, the tribunal concluded that the employer had taken the positive test as sufficient evidence that the charge had been proven and had closed its mind to any alternative explanation as to how this might have arisen. In those circumstances the dismissal was unfair, and Mr Ball was entitled to compensation.

This case reminds all employers that a failed drugs test still needs to be considered and analysed before any conclusions are reached from a disciplinary perspective. In addition, it is also a warning of the perils of allowing other individuals to influence a decision-making process. Such behaviour can easily render a dismissal to be unfair.

Safia Tharoo
42 Bedford Row, London