Case law: Court gives guidance on dealing with employees who fail drug/alcohol tests
An employer must act reasonably towards an employee who has failed a drugs or alcohol test. It must take into account the employee’s record, what the employer’s policies say, any explanation given by the employee (and the possible need to investigate further) and the effect of any sanction on their future employment prospects, a recent ruling makes clear.
This update was published in Legal Alert - February 2019
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A bus driver of 20-years standing was given a random saliva test pursuant to its drug and alcohol testing policy and tested positive for cocaine. He was 61 years old and diabetic. He denied cocaine use, suggesting that the trace may have come from banknotes, and had his own test carried out on a hair - which proved negative.
The employer ignored the results of the hair test as it had not been carried out by its own tester. It re-tested the saliva sample with a second tester and it continued to show positive. The laboratory reported it was highly unlikely that banknotes could be the cause of the positive finding.
Following a disciplinary hearing the driver was dismissed for gross misconduct for being under the influence of drugs, and two internal appeals failed. He claimed wrongful and unfair dismissal.
The Employment Tribunal (ET) ruled in the driver’s favour on the basis that the employer’s investigation, and its decision to dismiss him, were outside the range of reasonable responses that could be expected of an employer. Its reasons included:
- The employer should have taken into account the results of the driver’s independent hair test. Its claim that it was not its policy to do so was not correct, as the policy did not deal with the issue at all.
- The manager conducting the disciplinary hearing had ignored the driver’s offer to take a second test, had not told him the employer was having his saliva re-tested (so he was unable to comment on it), and cast doubt on the results of the hair test without any evidence to back up their opinion.
- Failing a drugs test was not listed among the examples given of gross misconduct in the employer’ disciplinary policy.
- Failing the test did not necessarily mean the driver was under the influence of drugs – the reason given for dismissal.
The ET said a reasonable employer would have run the test again, especially given the driver’s 20-year employment record and the fact a dismissal effectively ended his career.
There was also doubt as to whether the managers conducting the disciplinary hearing and the appeal genuinely believed the driver was guilty, the suspicion being that they were simply following the policy.
- Employers should ensure they act reasonably towards an employee who has failed a drugs or alcohol test, taking into account the employee’s record, what the employer’s policies say, any explanation given by the employee (and the possible need to investigate further) and the effect of any sanction on the employee’s future employment prospects
Case ref: Ball v First Essex Buses Limited, ET 3201435/2017
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