When it comes to workplace disciplinary proceedings, slavish following of rules is no replacement for common sense. In a case where the latter was sadly lacking, a bus driver who was sacked after failing a random drug test succeeded in unfair and wrongful dismissal claims and was awarded substantial damages.
After his saliva tested positive for cocaine, the driver was adamant that he had never taken drugs other than those prescribed to him by a GP. He explained that a great many students had been on his bus on the day of the test and that cocaine may have got into his saliva via bank note contamination.
As a diabetic, he had to test his blood sugar regularly, causing sore fingertips which he licked continuously. He commissioned independent tests and analysis of his hair follicles revealed no traces of cocaine. He was, however, dismissed for gross misconduct and that decision was upheld following two internal appeals.
After lawyers launched proceedings on his behalf, an Employment Tribunal (ET) noted his 21-year unblemished career as a bus driver. There was no suggestion that he was unreliable or that his performance was impaired by drugs. He handled cash frequently, but there was no question of money going missing. There was nothing to indicate that any safety issues had ever arisen in respect of his driving.
In refusing to take into account the hair follicle test results, the employer had acted with a closed mind in a manner that was illogical and grossly unfair. The amount of cocaine found in the saliva sample was very small and a further test should have been arranged. The issue of possible cross-contamination was never satisfactorily resolved.
In the circumstances, the ET was not satisfied that the saliva test results were accurate. Common sense had been surprisingly lacking from the disciplinary process and the driver’s dismissal fell outside the band of reasonable responses open to the employer. He was awarded a total of £37,639 in compensation.
