A gross misconduct disciplinary dismissal of a long-serving employee for failing a routine drug test was found to be unfair at an employment tribunal
The Case
Mr Ball had had been employed by First Essex Buses for in excess of 20 years as a bus driver. He was 61 years old, suffered with diabetes and high blood pressure, and had an unblemished disciplinary record
After a regular saliva drugs test (an accepted part of the company’s procedures) Mr Ball’s test results came back positive for cocaine. He denied having taken any drugs and argued that the test may have been contaminated (as there was no hand washing before the test was performed) and he regularly handled cash, stating that a large percentage of bank notes in general circulation show traces of cocaine on them and he regularly licks his fingers after testing his diabetes level daily
Mr Ball provided the company with results from two drug tests using hair follicles (tests which are considered more reliable for detecting drug use than saliva tests) that he performed later that day which came back negative for cocaine, but the company refused to admit these as evidence in the disciplinary hearing and disregarded them when making a decision to dismiss him for gross misconduct
At an appeal hearing the manager accepted the point Mr Ball made that it was unlikely a 61 year old diabetic with high blood pressure would be taking cocaine recreationally, but his dismissal decision was upheld. Mr Ball claimed for wrongful and unfair dismissal at an employment tribunal
The Tribunal Decision
The tribunal upheld both of Mr Ball’s claims and awarded him compensation of £37,639
They found that the company had not acted within the range of reasonable responses when conducting its investigation or when deciding to apply the sanction of dismissal. The flaws in the company’s process were found to be:
- The act of failing a random drugs test was not detailed as gross misconduct in the company’s disciplinary policy, yet Mr Ball was dismissed on that basis. No other indications of drug use were evident at the time
- When rejecting Mr Ball’s own tests, he was told that it wasn’t company policy to recognise alternative tests, but the policy did not actually state this or have any provision regarding alternate tests
- The company had breached its own disciplinary procedure which stated that it would ‘carefully consider’ any evidence submitted by an employee, yet no consideration was given to the tests provided by Mr Ball or any suggestion of where contamination of the saliva test may have occurred
- The company failed to consider Mr Ball’s employment record, and the disciplinary manager appeared to have been put under some pressure to dismiss Mr Ball by the General Manager who indicated that he had prejudged the outcome of the process during an email exchange with the HR department prior to the disciplinary hearing where he discussed Mr Ball resigning and saving the company all the time and effort of a dismissal meeting, appeal hearing, and probable tribunal case. The tribunal also found that the General Manager had emailed the disciplinary and appeal hearing managers instructing them on what to do and say (and what evidence and mitigation provided by Mr Ball to ignore) during their hearings
- Subsequent investigations made by the company to try and discredit Mr Ball’s evidence were unsuccessful (and therefore could help substantiate alternative reasons for a contaminated drug test result) but were not disclosed to Mr Ball or considered during the disciplinary process
- The tribunal found that the behaviour of the company throughout the process was unreasonable and not the actions of a reasonable employer, as such the compensatory award given to Mr Ball was increased in line with the ACAS code
Case Summary
This case clearly shows the importance of having a detailed and carefully worded disciplinary policy, and robust policies and procedures that link to that throughout the company
It also highlights the importance of a fair and reasonable investigation, disciplinary, and appeal process that MUST be impartial and not influenced by senior managers in the business or have a pre-judged outcome
You can make sure you are fully compliant with disciplinary procedures with our Disciplinary Pack