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Bus driver who failed drug test was unfairly dismissed, tribunal rules

22 Nov 2018 By Maggie Baska

Employee tested positive for cocaine, but business refused to consider private hair follicle tests that may have cleared him

A bus driver who was fired after testing positive for cocaine has won almost £40,000 after an employment tribunal ruled he was unfairly dismissed.

Kenneth Ball, who worked for First Essex Buses from 28 December 1996 until his dismissal on 20 July 2017, told the tribunal traces of cocaine from money he had handled could have contaminated his test results.

He had offered negative hair follicle tests as evidence that he was clean of drugs, however this was rejected by his employer.

Judge Tobin, who oversaw the case, said it was “illogical, grossly unfair and in breach” of the business’s disciplinary policies for it to discount the hair tests. The tribunal awarded Ball £37,639 for loss of earnings, future losses, an Acas uplift and other expenses.

Court documents showed Ball was required to take a random drug test in June 2017, in accordance with First Essex Buses’ drugs and alcohol policy. He was suspended after the results came back positive for cocaine.

Ball argued the test was unfair as he was “not required to wash his hands prior to handling the swab” and “did not wear gloves while handling the swab”, both of which could have contaminated the sample. He said he had returned from a busy shift where he picked up many students and had been handling cash, which is known to often contain traces of cocaine.

Ball, who was diabetic and was required to prick himself for blood sugar testing, also had very sore fingers which he would “constantly lick to stop the blood”. The tribunal heard this resulted in Ball “tasting the blood, taking money and licking his fingers”, and this frequent hand-to-mouth interaction could have led to contamination of the sample.

First Buses stated the testing was in line with its national policy but admitted it “had not sought clarification from the toxicology lab on the testing procedures followed for the collection and processing of samples”.

Ball was invited to a disciplinary hearing on 20 July 2017, following which he was dismissed for gross misconduct. He appealed the dismissal, and that appeal was heard in August. 

Ball provided evidence of two private hair follicle tests undertaken on 11 June and 17 August 2017, both of which tested negative for cocaine and benzoylecgonine. But the tribunal heard First Buses “refused to consider the hair follicle tests as evidence during the disciplinary hearing”. 

After that appeal was unsuccessful, he lodged a further appeal to First Essex Buses. On 13 September, his employer dismissed this second appeal. Ball then brought his case to the East London tribunal in October 2017. 

Judge Tobin said that to discount Ball’s hair follicle tests “was illogical, grossly unfair and in breach” of First Buses’ disciplinary policy, which said it had to take all evidence into account. 

Shah Qureshi, head of employment and professional discipline at Irwin Mitchell’s London office, told People Management the case was “quite the cautionary tale” for employers.

“There’s no dispute that failing a drug test is a potential misconduct issue,” Qureshi said. But he added test results need to be considered alongside other evidence, including an employee’s disciplinary record, evidence that could dispute the test and the accuracy of the test itself. Employees also need to be informed on what basis any claim of misconduct was being made.

Claire McKee, associate at Dentons, added employers should “always take mitigating circumstances into account” when it came to disciplinary proceedings and failed drugs tests. 

“The claimant's position on cross-contamination was all but ignored despite being ‘open to the issue’ as far as the judge was concerned,” McKee said. “At no stage did any of the managers take steps to review the employee's sickness absence, assess attendance and punctuality, speak to the employee's colleagues or contact the employee's GP.”

First Essex Buses could not be reached for comment.

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