Tribunal awards employee £40,00 after testing positive for cocaine

Kenneth Ball who worked for First Direct Buses was fired for testing positive for cocaine, however after an employment tribunal ruled that he was unfairly dismissed, he was awarded £40,000.


Ball had worked for the company from December 1996 until July 2017 when he was dismissed. First Direct Buses have a no tolerance drug policy and therefore fired Ball after he tested positive for cocaine.


The tribunal was told that money that has traces of cocaine could have contaminated the test results. As a result of the positive results for cocaine being present, Ball offered another test to First Direct. Ball wanted to offer a negative hair follicle test to prove his innocence, however First Direct Buses rejected the test.


Judge Tobin was presiding over the tribunal and stated that it was “illogical, grossly unfair and in breach of the business’s disciplinary policies for it to discount the hair tests”. This resulted in Ball being awarded £37,639 for loss of earnings, future losses, an ACAS uplift as well as other expenses.


The incident occurred due to First Direct Buses drugs and alcohol policy, which states that drivers are subject to random drug tests. Ball had the random test in June 2017 and subsequently was suspended when the results showed positive for cocaine. After the results came out, Ball Argued that the test was not fair as he didn’t have to “wash his hands prior to handling the swab” and “did not wear gloves while handling the swab”, both of which could have affected the sample as Ball had just comeback from a busy shift in which he picked up many students and had been handling cash, which is well known to often carry traces of cocaine.


Ball was a diabetic and therefore had to prick himself in order to check his blood sugar levels. This resulted in him having very sore fingers that often bled and due to this he would lick to stop the blood. This led to frequent hand to mouth action, which could have explained why there was a positive for result in the testing for cocaine.


The company stated that the tests were in line with its usual policy but did admit that it “had not sought clarification from the toxicology lab on the testing procedures followed for the collection and processing of samples”.


Ball was invited to a disciplinary hearing on 20th July 2017 and this resulted in him being dismissed for gross misconduct. This decision made by the company was appealed by Ball and in August 2017 the appeal meeting was held. In this appeal hearing Ball provided evidence of two private hair follicle tests, both of which tested negative for cocaine and benzoylecgoine. However the tribunal heard that First Buses “refused to consider the hair follicle tests as evidence during the disciplinary hearing”.


The appeal was not successful and due to this he further lodged another appeal to First Direct Buses. The second appeal was dismissed by Balls employers. As a result of this he brought his case to the East London tribunal in October 2017.


Claire McKee, associate at Dentons, stated that employers should “always take mitigating circumstances into account” when it came to disciplinary proceedings and failed drugs tests.


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