Employee drug testing – not just a simple pass or fail?
05 / 12 / 2018
Dealing with a positive drugs test by an employee involves balancing the individual rights of an employee against the need of the business to ensure general health and safety in the workplace.
In the case of Ball v First Essex Buses Limited, an employment tribunal held that an employer had dismissed a bus driver unfairly, despite the fact that he had returned a positive result on a routine drug test . Mr Ball had undergone a random drugs test at work in accordance with the company’s policy. The saliva test proved positive for cocaine and a disciplinary process was begun.
However, Mr Ball disputed the evidence and maintained his innocence. He submitted that the manner in which the drugs test had been conducted meant that the sample could have been contaminated, as he had not been required to wash his hands prior to handling the swab. As part of his job, he handled a lot of cash, which, he argued, could have contained traces of cocaine. In addition, he commissioned his own hair follicle test, which came back negative.
Following the disciplinary hearing he was summarily dismissed for gross misconduct. He appealed but his dismissal was confirmed by the company.
The employment tribunal held that he had been unfairly and wrongfully dismissed. The judge was unimpressed with the company’s approach to the decision to dismiss for a number of reasons:
- They failed to properly have regard to the evidence put forward by the employee (i.e. the hair follicle result).
- They had adopted a closed mind to all other possible explanations that did not fit with their predetermined conclusion (there were email communications between company members which were evidence of this).
- They had failed to have regard to the claimant’s good behaviour and long service
- Failing a random drug test was not identified as an act of gross misconduct in the company’s disciplinary procedures.
- The company’s drug and alcohol policy stated that a positive test may lead to dismissal, but this still required a full and fair consideration of all the circumstances and not just the initial saliva result.
- The employee was not given a proper opportunity to challenge the initial drug test, and this was in breach of the company’s own procedures.
- The employee was told by management that the company’s policy did not allow for alternative drug tests, but this was wrong.
Perhaps the most important lesson from this case is that a positive drugs test should not lead to an automatic dismissal. An employer must keep an open mind and consider all the circumstances, particularly where the employee protests their innocence. Even in the present case where the employee was a bus driver and public health and safety was therefore paramount, a narrow-minded approach was not justified and greater consideration should have been given to the evidence put forward by the employee.
The case also highlights the importance of having clear policies on drug testing and following them. In the present case the Tribunal was unimpressed by the fact that the company had not followed its own procedures.