News & Views

Drug testing at work

KB
BY Kirstie Beattie
Employment law

If your Organisation reserves the right to carry out random alcohol and drug testing you will have to ensure a cautious and careful approach when conducting any investigations or disciplinary proceedings against employees who fail an alcohol or drugs test in the workplace.

If your Organisation reserves the right to carry out random alcohol and drug testing you will have to ensure a cautious and careful approach when conducting any investigations or disciplinary proceedings against employees who fail an alcohol or drugs test in the workplace.

In a recent case, Mr Ball, a 61-year-old diabetic, was employed as a bus driver with First Essex Bus Limited and had over twenty years’ service. The Company had an alcohol and drugs policy which stated employees could be subjected to randomised testing.

A saliva test was undertaken on Mr. Ball in June 2017 and it showed a positive result for cocaine. Given the zero-tolerance approach to drugs in the workplace, the Company followed its internal disciplinary process and Mr Ball was ultimately summarily dismissed. He unsuccessfully appealed against the decision.

While maintaining his innocence throughout Mr Ball argued there had been flaws with the testing process. In particular, he highlighted that he had not been asked to wash his hands or wear gloves before handling his saliva sample. Mr Ball argued that he believed his handling of money as well as licking his sore fingers meant that bank notes containing cocaine had contaminated his saliva sample. He voluntarily took a hair follicle drug test outside of the disciplinary process which showed no cocaine in his system. First Bus rejected the voluntary drug test as it had not been carried out by the Company’s approved drug testing company. During the appeal process, an investigation was carried out and the laboratory used by First Bus gave advice into possible contamination of the saliva sample. Despite this caveat, the Company again decided to discount the hair follicle test.

The Tribunal upheld Mr Ball’s claims for wrongful and unfair dismissal. They were extremely critical of the Company’s investigation process and awarded Mr Ball ongoing losses for three years. The Tribunal noted that the Company had breached the ACAS code and its own disciplinary procedures by not considering evidence provided by Mr Ball.

The important point to take from this case is that a disciplinary process needs to be a malleable, flexible process. Employers cannot simply blindly follow internal process without at least showing they have considered whether external evidence is relevant. That’s not to say that everything an employee says is relevant, quite often you’ll find that an employee facing disciplinary proceedings will throw a lot of mud to see if anything sticks, but it is important to carry out an evaluation exercise on evidence provided by the employee. And as a non-legal tip, perhaps it’s a good idea to wash your hands before you eat if you’ve been handling money…

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