The claimant worked as a bus driver for over 20 years. He was required to take a random drugs test which he failed after testing positive for cocaine. He had returned from a busy shift where he had handled a lot of cash. As a diabetic, he said the substance entered into his system through his fingers which were bleeding due to needle checks on his blood sugar. He was dismissed and contended that the decision was both procedurally and substantively unfair.

Firstly, he argued that the drug test was not in accordance with the European Union laboratory guidelines. Further, the failure of his employer to consider the results of 2 hair follicle tests, both of which proved negative for cocaine, questioned the reasonableness of the investigation.

The tribunal was critical of the attitude of management and HR advisors involved, noting that they had simply “closed their minds to all possible explanations that did not fit their predetermined conclusions.” It went further and held that they were “committed to one outcome only and that was to find the claimant guilty.”

It was held that the respondent’s actions were outside the range of reasonable responses for an employer of its type and nature. The claimant was awarded £37,639.32 for unlawful and wrongful dismissal.

Practical Lessons

This judgment focuses on the concept of ‘reasonableness’ and what a reasonable employer would have done in the circumstances of this particular case. It is particularly striking that there were obvious opportunities for the employer to make further enquiries such as properly considering the outcome of the hair follicle testing or even organising a re-test. It is also worth pointing out that the ‘band of reasonable responses’ takes account of the size of an employer and the resources available to it. The employer here was relatively large and could easily have probed further. However, where a tribunal finds that an employer’s motives were deliberate or blameworthy, it is very unlikely that arguments based on a lack of available resources will prove successful.
https://assets.publishing.service.gov.uk/media/5beaf694e5274a08595e4f16/Mr_Kenneth_Ball_v_First_Essex_Buses_Ltd_-_3201435_2017_-_Judgment.pdf