In Ball v First Essex Buses Limited the Employment Tribunal found that it was unfair to dismiss a bus driver for gross misconduct when he failed a routine drugs test.

In this case, Mr Ball failed a routine drugs test carried out by his employer, when a saliva test showed positive for cocaine. He was dismissed for gross misconduct for being under the influence of drugs.

The Employment Tribunal found that the employer took the approach that dismissal was inevitable from a failed drugs test, even though the dismissing manager did not actually have a genuine belief that the employee had taken drugs. The employer refused to engage in arguments from the employee that the test sample may have been contaminated and did not retest the employee with a new sample. The Tribunal found that the employer’s investigation was outside the range of reasonable responses.

The employer was also wrong to automatically characterise failing a drugs test as gross misconduct of being under the influence of drugs, rather than simply failing a drugs test. The employee in this case had shown no signs of being under the influence of drugs.

Comment

This case shows that employers should not necessarily treat results from drugs tests as infallible and the end of the investigation. In this case the employer did not want to hear the evidence presented by the employee. Also, it’s important not to conflate failing a drugs test with being under the influence.

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