• Facebook
  • Twitter
  • LinkedIn
Call us now: 01243 836 840   [email protected]
Pure Employment Law
  • Who We Are
    • Nicola Brown
    • Peter Stevens
    • David Jones
    • Debbie Poole
    • Linda Nye
    • Brenda Cherry
  • For Employers
    • Advice on HR and People issues
    • Investigations, Hearings and Appeals
    • Restructuring and Redundancy
    • Defending Employment Tribunal Claims
    • Dismissal of Senior Executives
    • Contracts, Handbooks and Policies
    • Employment Law Training
  • For Employees
    • Settlement Agreements
    • Workplace Issues including Disciplinary and Grievance
    • Bringing an Employment Tribunal Claim
  • Employment Law Events
  • Legal Updates
  • Testimonials
  • Vacancies
  • Contact us
  • Search
  • Menu Menu

Is it always reasonable to dismiss an employee for failing a drugs test?

30th November 2018

As employers, you have a legal duty to take reasonable care of the health, safety and welfare of your employees. If an employee is suspected of being under the influence of alcohol or drugs (whether prescription or illegal drugs) then you may be expected to take action to protect them and others. The action may depend on the employee’s role – for example, drug screening is much less likely to be justifiable for office workers than for drivers or those operating heavy machinery.

So, is it always reasonable to dismiss an employee for failing a drugs test?

When considering whether a dismissal for misconduct is fair, an Employment Tribunal will need to determine whether the decision to dismiss the employee fell within the ‘range of reasonable responses’ available to a reasonable employer in the circumstances.

In a recent case involving the dismissal of a bus driver who failed a drugs test, the employer’s decision to dismiss was found to be outside the range of reasonable response and therefore unfair.

Ball v First Essex Buses Limited

Mr Ball, a 61 year old diabetic, had been employed by First Essex as a bus driver for over 20 years. The company’s Drugs and Alcohol policy allowed for random testing. Mr Ball was selected for testing and underwent a saliva test, which showed positive for cocaine. Mr Ball said that he never used drugs, and suggested that the test may have been contaminated, for example, he was not required to wash his hands or wear gloves before handling the sample. Mr Ball also claimed that it was possible that the bank notes he handled were contaminated with cocaine, which could have found its way into the sample – he said that often licked his fingers, which were sore from checking his blood sugar levels every 2 hours.

Mr Ball arranged his own private drugs test (a hair follicle test) twice, which did not test positive for cocaine. However, the company rejected the results of these tests.

Mr Ball was dismissed for gross misconduct following a disciplinary hearing. He appealed against his dismissal but was unsuccessful, and brought claims for wrongful and unfair dismissal in the Employment Tribunal.

The Tribunal found that the employer had not acted within the range of reasonable responses both when investigating and when deciding to dismiss Mr Ball. The Tribunal noted in particular that:

  • The company told Mr Ball that their policy did not allow them to recognise alternative tests, however this wasn’t mentioned in the policy. They also failed to bring to Mr Ball’s attention that the policy said he could challenge a positive result.
  • Whilst the employer’s disciplinary policy said that it would carefully consider evidence submitted by the employee, they had closed their minds to all possible explanations that did not fit their predetermined conclusion.
  • Failing a random drugs test was not given as an example of gross misconduct in the disciplinary policy, however they had decided that it was sufficient evidence of Mr Ball being under the influence of illegal drugs, which was identified as being gross misconduct. The company, however, had no other reason to believe that Mr Ball had been under the influence of cocaine whilst on duty as his behaviour, good character, long service, age and health condition were all indicators to the contrary. The information from the lab was that the amounts detected were so small that he couldn’t have been under the influence of illegal drugs, but they had failed to consider this point.

The Tribunal held that a reasonable employer would have at least re-tested the employee. Mr Ball was a long-standing employee with a previously unblemished record and he was facing a career-ending decision.

Whilst there can be good reasons for employers to have a policy of carrying out random drug testing, this case highlights the risks of treating the results as “black and white” and the importance of always considering whether dismissal is reasonable in the particular circumstances.

Drug and alcohol testing will always require the employee’s consent, and any information gained through testing amounts to sensitive personal data and should be handled carefully.

We can help with preparing or reviewing policies and procedures and also with advising on tricky issues relating to alcohol and drugs in the workplace. If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.
Share this article
  • Share on Facebook
  • Share on Twitter
  • Share on WhatsApp
  • Share on LinkedIn
  • Share on Reddit
  • Share by Mail
https://www.pureemploymentlaw.co.uk/wp-content/uploads/2019/02/alcohol-and-drugs.jpg 337 508 Nicola Brown https://www.pureemploymentlaw.co.uk/wp-content/uploads/2019/02/Pure-Employment-Law-logo.jpg Nicola Brown2018-11-30 11:00:542019-02-06 16:52:33Is it always reasonable to dismiss an employee for failing a drugs test?

Join our mailing list

* = required field
Mailing Lists


Recent Legal Updates

  • Can long Covid be a disability? 29th June 2022
  • Employer unfairly counted disability-related absences when dismissing 29th June 2022
  • Did an Employment Tribunal correctly award an uplift for failure to follow the ACAS Code in a sham redundancy case? 29th June 2022
  • Without prejudice negotiations – what is unambiguous impropriety? 29th June 2022
  • Does referring to a man’s baldness at work amount to sexual harassment? 25th May 2022
Link to: Contact Us

Any questions? Why not get in touch!

Our advice is always given in plain English without any waffle, and we focus on providing practical solutions to our clients’ problems.

Contact us

LEGAL INFORMATION

Pure Employment Law | 1 Little London, Chichester, West Sussex, PO19 1PH
[email protected]o.uk | Tel: 01243 836840

Pure Employment Law is the trading name of Pure Employment Law Limited, registered in England and Wales with company number 07134294 and whose registered office is 1 Little London, Chichester, West Sussex, PO19 1PH. Pure Employment Law Limited is authorised and regulated by the Solicitors Regulation Authority with registration number 533794. A list of the company’s directors is available for inspection at the registered office

DISCLAIMER

The information contained in this website is for general information purposes only. The information is provided by Pure Employment Law and while we endeavour to keep the information up to date and correct, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability or availability with respect to the website or the information, products, services, or related graphics contained on the website for any purpose. Any reliance you place on such information is therefore strictly at your own risk.

Privacy Policy | Cookies Policy | Terms & Conditions | How to make a complaint | Sitemap

© Pure Employment Law 2022

Scroll to top

This site uses cookies. By continuing to browse the site, you are agreeing to our use of cookies as defined in our cookie policy.

Accept Cookie Policy

Cookie and Privacy Settings



How we use cookies

We may request cookies to be set on your device. We use cookies to let us know when you visit our websites, how you interact with us, to enrich your user experience, and to customize your relationship with our website.

Click on the different category headings to find out more. You can also change some of your preferences. Note that blocking some types of cookies may impact your experience on our websites and the services we are able to offer.

Essential Website Cookies

These cookies are strictly necessary to provide you with services available through our website and to use some of its features.

Because these cookies are strictly necessary to deliver the website, refusing them will have impact how our site functions. You always can block or delete cookies by changing your browser settings and force blocking all cookies on this website. But this will always prompt you to accept/refuse cookies when revisiting our site.

We fully respect if you want to refuse cookies but to avoid asking you again and again kindly allow us to store a cookie for that. You are free to opt out any time or opt in for other cookies to get a better experience. If you refuse cookies we will remove all set cookies in our domain.

We provide you with a list of stored cookies on your computer in our domain so you can check what we stored. Due to security reasons we are not able to show or modify cookies from other domains. You can check these in your browser security settings.

Google Analytics Cookies

These cookies collect information that is used either in aggregate form to help us understand how our website is being used or how effective our marketing campaigns are, or to help us customize our website and application for you in order to enhance your experience.

If you do not want that we track your visit to our site you can disable tracking in your browser here:

Other external services

We also use different external services like Google Webfonts, Google Maps, and external Video providers. Since these providers may collect personal data like your IP address we allow you to block them here. Please be aware that this might heavily reduce the functionality and appearance of our site. Changes will take effect once you reload the page.

Google Webfont Settings:

Google Map Settings:

Google reCaptcha Settings:

Vimeo and Youtube video embeds:

Other cookies

The following cookies are also needed - You can choose if you want to allow them:

Privacy Policy

You can read about our cookies and privacy settings in detail on our Privacy Policy Page.

Privacy Policy
Accept settingsHide notification only