Timely tips for conducting a disciplinary investigations
I’m often asked by employer about how much investigation is actually need in a disciplinary process. Very often an employer will take the view that a case is clear cut, thorough investigation is futile as no matter what, an employee has to be dismissed. A recent decision from the Employment Tribunal highlights the dangers in taking short cuts in the investigation of a disciplinary process.
In the case of Ball v. First Essex Buses Limited, an Employment Tribunal held that a bus driver was unfairly dismissed for gross misconduct when he failed a routine drug test. The Tribunal also upheld his claim for wrongful dismissal.
The Facts :
Mr Ball was a 61 year old diabetic bus driver. He had to check his blood sugar levels every two hours by carrying out a blood prick test to his fingers. The employer had a drugs and alcohol policy which allowed it to carry out random drug testing. A test was carried out on Mr Ball and a saliva test showed positive for cocaine. Mr Ball stated that he had never used drugs and he suggested that the saliva test might be contaminated. He flagged up to his employer that there were defects in the way that the test had been conducted and he also suggested that since he handled money it was possible that the bank notes were contaminated with cocaine and had found their way into the sample.
Mr Ball provided his own drug test results including a hair follicle test which did not detect any cocaine in his system. The employer sent the saliva test that it had obtained to a second drug testing agency, but failed to send the hair follicle test obtained by Mr Ball. At his disciplinary hearing, Mr Ball was dismissed for gross misconduct. The employer said that it was entitled to ignore the result of the hair follicle test as the test had not been carried out by the employer’s approved tester. Mr Ball appealed against his dismissal. His appeal was unsuccessful. He lodged a second appeal.
Further investigation took place. The laboratory used by the employer to test the saliva sample told the appeal manager that the amount of cocaine detected in the saliva sample might not have been enough to appear in the hair follicle test. It also said that as it takes fourteen days for drugs to show up in a hair follicle, the test might not have covered the period when the drug was used. The appeal manager therefore decided not to take the hair follicle test into account and the appeal was dismissed.
What the Tribunal said : The Employment Tribunal upheld Mr Ball’s claims for unfair dismissal and wrongful dismissal. Part of the compensatory award included salary losses for a period of three years. This is because although Mr Ball had found another job, this was on a lower salary. The Tribunal said that the employer had not acted within the range of reasonable responses when carrying out its investigation and when deciding to apply the sanction of dismissal.
In the Tribunal’s view the investigation was flawed because:
- The employer had told Mr Ball that it was not within its policy to recognise alternative drugs tests and that was the reason why it had rejected the hair follicle test.
The correct position though was that the employer’s drugs and alcohol policy was silent on that point.
The policy also stated that it was open to the employee to challenge a positive result, but Mr Ball was not made aware that he could do that.
- The employer had acted against its own disciplinary policy which said that the employer would carefully consider any evidence submitted by the employee.
- At the appeal hearing, Mr Ball’s offer to undertake another test was ignored by the employer. The Tribunal rejected the employer’s argument that it was not required to go behind a failed drug test and investigate further. The drugs and alcohol policy indicated that a failed drugs test might lead to dismissal but that a consideration of all of the circumstances was required.
In their view a reasonable employer would have had at least re-tested the employee, particularly given that this was a “long standing and unblemished employee who was facing a career ending decision.”
The employer should therefore have conducted further enquiries.
- To establish that a dismissal is fair, a Tribunal will question whether the employer had a genuine belief that the employee had committed the alleged act of gross misconduct and that that belief was formed after having carried out as much investigation as was necessary in the circumstances.
The Tribunal took the view that the employer had not properly formed a genuine belief. Their view was that the manager who dismissed Mr Ball did not have a genuine belief in his guilt and was following the instructions of the employer’s general manager immediately prior to the hearing. The alleged instruction was that the manager had been told, “not to get embroiled in the hair follicle test since their procedures did not allow for it.”
- The evidence led before the Tribunal showed that the appeal manager took the view that it was hard to believe that a diabetic man on blood pressure medication would take cocaine, but he felt bound to follow the evidence which was only the saliva test.
- The dismissal letter stated that the reason for the dismissal was ground misconduct and did not give an explanation as to why.
The evidence from the Employer at the Tribunal was that the misconduct was that Mr Ball was on duty for being under the influence of drugs. Failing the drugs test was viewed as being sufficient to dismiss for gross misconduct although that was not an instance of gross misconduct in terms of the Employer’s disciplinary rules.
This was too much of a leap and the two issues should have been kept distinct. There is clearly a difference between failing a drug test and being under the influence of drugs and alcohol.The moral of the story to avoid a Tribunal award against you, when you are conducting a disciplinary process: Don’t take a blinkered approach, particularly where it is an employee like Mr Ball who has an unblemished service record. Examine all of the evidence. Do not refuse to consider the evidence brought by an employee. Don’t jump to the wrong conclusion or at least have evidence to support your conclusion. Give reasons for your decision. If you have any questions on conducting a disciplinary hearing or if this case touches a nerve, even if it is just to ensure that you have up to date disciplinary and drugs and alcohol policies in place, then please contact our Julie Sullivan.