In Ball v First Essex Buses Limited, B was a bus driver and is diabetic. He had to check his blood sugar levels every two hours; this made his fingers sore and he licked them to stop the blood, meaning he would sometimes be taking money from passengers and licking his fingers. B finished a shift where he had picked up a lot of students and had handled a lot of cash. He failed a random saliva sample drugs test which was found to be positive for cocaine. The bank notes he handled also contained traces of cocaine. B was shocked by the test result and took 2 private hair follicle tests shortly afterwards, both of which tested negative for cocaine, covering the prior period of 216 days. B, nevertheless, was summarily dismissed for gross misconduct which an ET found to be unfair. The employer had a ‘closed mind’ because it considered its own drugs test to be conclusive. Furthermore, the possibility of cross contamination had not been examined and the results of the 2 negative hair follicle tests were ignored. The summary dismissal for gross misconduct was also wrongful as the evidence did not support a belief that B was under the influence of illegal drugs whilst on duty. B was awarded £37,639 compensation.
£37,000 unfair dismissal award where employer ignored conflicting drug test results
Article by: Makbool Javaid |