Unfair Dismissal

22 January 2019 | Arti Patel

Unfair dismissal following positive drug testing

A recent case by Kenneth Ball (B) v First Essex Buses (2018) has highlighted some important points employers must consider during disciplinary procedures. B tested positive for cocaine in a randomised saliva drug test conducted by his employer. The court found that the decision to dismiss B for failing a drug test was procedurally and fundamentally unfair.

The case confirms that B denied taking cocaine and confirmed that the positive reading was due to cross contamination. Some of the factors include; that he had not been given the opportunity to wash his hands when tested, he handled bank notes and he had pricked his fingers with needles for his diabetes test, which could have caused a misreading. Since the date of his test, B had found that 80% of the bank notes in circulation were contaminated with drugs. B later tested negative for cocaine and benzoylecgonine during two hair follicle tests. The employer had refused to consider the hair follicle test as evidence during the disciplinary hearing and there was nothing in their employee handbook to suggest they must consider other tests. On the other hand, there was nothing to prevent them from considering evidence which falls outside the company procedures.

The employer also failed to allow B the opportunity to challenge the drug test, which was in breach of their own procedures. The employment tribunal also confirmed that First had breached the ACAS Code of Practice due to discounting key evidence from B; the managers should have kept an open mind. First also failed to consider the employees’ exemplary record of attendance and punctuality and failed to contact B’s medical practitioner.

Do not predetermine the outcome of the disciplinary

The important note to take away from this case is that employers must not predetermine the outcome of the disciplinary hearing and must ensure they take an impartial viewpoint when considering any formal action against the employee. Employers must consider all the evidence and information collated and not make decisions based on limited information. In addition, considering the employee’s previous record prior to a dismissal is imperative as this may render the decision unfair despite the act.

During disciplinary procedures, employees must be given the opportunity to submit any evidence to support their case. It is important that your policies and procedures are in line with ACAS Code of Practice and that the code is followed fully to avoid any procedural errors.

For further information on disciplinary procedures, please contact our employment helpline and visit the document library for the disciplinary management guide.  If you are not a client, please contact us.


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With over 20 years experience in HR, Hema draws her expert specialist knowledge from a broad range of industries, including employment advisory and consultancy services, retail, manufacturing and leisure. Being MCIPD qualified enables her to quickly understand how organisations operate, how to interact with their business leaders and to deliver effective commercial and practical solutions.

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Anoop is an experienced HR Advisor and is part of the Telephone Advice Line Team. Anoop has worked in both the public and private sector, providing Employment Law advice ranging from grievances, disciplinaries, performance management, attendance management and mediation. Anoop is a trained mediator and provides down to earth, pragmatic, commercial advice. Outside of work, Anoop actively participates as a CIPD Board Member of East Midlands.

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