Drug testing in the workplace: a warning for employers

The recent tribunal case of Ball v First Essex Buses Limited has demonstrated just how careful employers must be when conducting investigations and instigating disciplinary proceedings against employees who have fallen foul of a drugs test in the workplace.

The facts

Mr Ball, a 61-year-old diabetic, was employed as a bus driver with First Essex Bus Limited for over twenty years before his dismissal for gross misconduct in July 2017. The company had a drugs and alcohol policy which stated that employees may be subject to randomised testing.

On 6 June 2017, Mr Ball was subject to a saliva test which showed positive for cocaine. He was then invited to a disciplinary hearing and summarily dismissed for gross misconduct. His appeal was unsuccessful.

Throughout the disciplinary process, Mr Ball maintained his innocence and argued that there had been flaws in the testing process. In particular, he said that he had not been asked to wash his hands or wear gloves before handling his saliva sample.

Owing to the nature of his job, Mr Ball believed that his handling of money - as well as having a tendency to lick his fingers when they were sore - meant that bank notes containing traces of cocaine had contaminated his saliva sample. He also voluntarily took another drugs test outside of the disciplinary process - known as a hair follicle test - which detected no cocaine in his system. However, the company dismissed this test as it had not been carried out by the company’s approved drug tester.

More investigations occurred when Mr Ball lodged his appeal. The laboratory used by the company gave some further advice into the possible contamination of the saliva sample and the company again decided to discount Mr Ball’s additional hair follicle test.

Tribunal decision

Mr Ball brought claims for wrongful and unfair dismissal. Although the company argued they had a legitimate reason for dismissal and followed a fair procedure, Mr Ball’s claims were upheld and he was awarded ongoing losses for three years. The tribunal was highly critical of the company’s investigation process and noted that:

• The company had breached its own policy when they told Mr Ball that they couldn’t accept his hair follicle test (in reality, the policy said nothing about this point)
• The company had breached its own disciplinary procedure - and the ACAS code - by failing to consider the evidence that Mr Ball provided
• Mr Ball offered to undertake further drugs tests, but this was ignored
• Mr Ball was not informed that further investigations were taking place during his appeal process; and
• The dismissal letter said that failing the drugs test was evidence of gross misconduct, however this wasn’t included as a specific example of gross misconduct under the policy.

Conclusion

Employers must continue to be proactive in combating any drug-related activities in the workplace and never turn a blind eye to suspicious behaviour. That said, Ball v First Essex Buses Limited confirms that employers cannot make rash decisions on the outcome of drugs tests and fail to follow their own disciplinary and drug and alcohol policies. What’s more, a failed drugs test doesn’t mean that an employer should ignore any reasonable explanations offered by the affected employee.

As occurred in this case, the employer’s unwillingness to accept an alternative explanation gave the impression to the tribunal that the decision to dismiss Mr Ball had been made the moment the saliva test came back positive. Crucially, employers need to understand that failing a drugs test and being under the influence of drugs are two entirely separate matters. If an employee fails a drug test, a fair and reasonable investigation - in compliance with existing disciplinary/drug and alcohol policies and the ACAS Code - must be undertaken before disciplinary proceedings can be properly concluded.

We have previously considered how employers can best implement a drugs policy as well as discussing some of the potential problems with drug testing at work for the unwary.