In Ball v First Essex Buses Limited ET 3201435/2017 an Employment Tribunal decided an employee was unfairly dismissed for gross misconduct when he failed a routine drug test.
An employer must hold such investigation as is “reasonable in all the circumstances” when investigating a potential misconduct issue (Sainsbury’s Supermarkets Ltd v Hitt  EWCA Civ 1588). An employer will need to investigate sufficiently and the more serious the allegation the more detailed an employer should be. The allegations put to the employee must be sufficiently clear so that the employee can respond in a meaningful manner.
When an employer dismisses for misconduct, the Burchell test requires that, at the time of dismissal, the employer has:-
1. A reasonable belief in the employee’s guilt which is,
2. based on reasonable grounds,
3. following a reasonable investigation.
Mr Ball was employed as a bus driver with First Essex Bus Limited (First Essex) from December 1996 to July 2017. He was a 61 year-old diabetic with high blood pressure and had to check his blood sugar levels every two hours by carrying out a blood prick test to his fingers.
On 6 June 2017, a saliva test carried out in accordance with the employer’s Drug and Alcohol Policy showed positive for cocaine. Mr Ball protested his innocence, claiming he had never used drugs, and speculated that the saliva test might have been contaminated. He pointed out defects in the way the test had been conducted (for example he had not been required to wash his hands or wear gloves before handling the sample). He also put forward the theory that since he handled money (as well as licking his fingers when sore), it was possible that the bank notes were contaminated with cocaine and had found their way into the sample.
Mr Ball lodged a claim for wrongful and unfair dismissal in the employment tribunal. First Essex contended that it dismissed Mr Ball fairly, for a conduct-related reason, and that it had adopted a fair procedure.
The employment tribunal upheld Mr Ball’s claims for unfair and wrongful dismissal. It awarded him ongoing unfair dismissal losses for a period of three years (he had found another job as a caretaker but on a lower salary).
First Essex had not acted within the range of reasonable responses when carrying out its investigation or when deciding to apply the sanction of dismissal.
The investigative process was flawed. Key points highlighted were that:
• When rejecting the hair follicle test, First Essex mistakenly told Mr Ball that it was not within its policy to recognise alternative drugs tests. In fact, the drugs and alcohol policy was silent on the issue. There was also a reference in the policy to a donor being able to challenge a positive result, but this was not drawn to Mr Ball’s attention.
• First Essex acted in breach of its own disciplinary procedure, which provided that it would carefully consider any evidence submitted by the employee.
• During the disciplinary hearing, the relevant manager adopted a blinkered view towards the evidence, refusing to be drawn into arguments about cross-contamination of the saliva sample, as well as arguments about mitigation.
• At the appeal hearing, the case of First Bristol Limited v Bailes, in which arguments about contamination of bank notes with cocaine were accepted, was brought to the attention of First Essex but to no avail. Mr Ball’s offer to undertake another test (in addition to the saliva and hair follicle test) was ignored.
• When further investigations took place during the appeal process, Mr Ball was not informed of what these were or given the opportunity to comment.
• At the second stage of the appeal process, Mr Ball submitted a further hair follicle test but, apart from the points that had already been made in relation to this, the relevant manager questioned the integrity of the test while there was no basis for doing so.
• The second-stage appeal manager appeared to regard the decision as to whether to dismiss for a positive drugs test as “black and white”.
• The dismissal letter cited gross misconduct as the reason for dismissal. Although the letter itself did not elaborate further, First Essex gave evidence that the misconduct consisted of Mr Ball being on duty under the influence of drugs. Failing the drugs test was treated as sufficient evidence for gross misconduct but was not of itself an instance of gross misconduct under the disciplinary policy.
The employment tribunal rejected First Essex’s argument that it was not required to go behind a failed drug test and investigate further. The drugs and alcohol policy indicated that a failed drugs test might lead to dismissal but that a consideration of all the circumstances was required. Given the issue of contamination having been raised, and given that follicle tests had been supplied, a reasonable employer would have at least re-tested the employee. Given that a long-standing and unblemished employee was facing a career-ending decision, it was outside the band of reasonable responses not to conduct further inquiries.
The way in which First Essex dealt with the matter at various stages suggested it had a closed mind, including being dismissive of Mr Balls’ long and unblemished service. Neither did First Essex have an honest and genuine belief in Mr Ball’s guilt, as required by Burchell. The manager who first took the decision to dismiss Mr Ball did not have a genuine belief in his guilt, he appeared to be following the instructions of First Essex’s general manager immediately prior to the hearing not to get embroiled in the hair follicle test since “our procedures do not allow for it”. The appeal manager acknowledged that it was hard to believe that a diabetic man on blood pressure medication would take cocaine, but felt bound to “follow the evidence”, namely the saliva test.