Employment Review: May 2015 – Unfair dismissal finding for cocaine positive bus driver

The Tribunal in Bailes v First Bristol Ltd has awarded an unfair dismissal pay out of £83,910 to a Bristol bus driver who was dismissed after testing positive in a saliva test for cocaine.

Mr Bailes persuaded the Tribunal that the positive drugs test resulted from him handling bank notes contaminated with the illegal substance handed over by passengers, and not from his personal use of cocaine and that his employer wrongfully refused to reinstate him after new independent evidence was produced to confirm his innocence.

In a bid to clear his name, Mr Bailes spent £440 on a more accurate saliva test obtained through his GP, which proved that he had not had drugs in his system in the last 3 months.

Despite this evidence, and his clean disciplinary record over the last 22 years with the company, First Bristol refused to reinstate Mr Bailes.

The Tribunal was particularly critical of the company’s failure to investigate the explanations put forward by Mr Bailes and the saliva test results, commenting that it had been “wholly uninterested in exploring that sensitive but important issue”.

The Tribunal awarded a compensatory award of £72,300 (the maximum available at the time) and a basic award of £11,610; making up a total of £83,910. It also applied a 20% uplift for the company’s failure to investigate the matter properly thus putting it in breach of the ACAS Code of Practice on disciplinary and grievance procedures.

Comment

With the recent introduction by police of roadside drug testing, this case is likely to have an increasing impact on businesses and is an important reminder of the need for employers to carry out a fair and reasonable investigation into drug and alcohol allegations before making a decision to dismiss or discipline staff.

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