Unfair Dismissal Finding for Cocaine Positive Bus Driver

Bailes v First Bristol Limited

A Bristol bus driver who was dismissed after testing positive in a saliva test for cocaine has been awarded an £84,000 pay out for unfair dismissal by the Employment Tribunal. The driver 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.

The driver insisted that whilst at work he had been counting cash and eating sandwiches at the same time which increased the likelihood of the drug being transferred to his mouth.

It is thought that up to 88% of bank notes in the UK carry traces of illegal drugs. A study by the Forensic Science Service in 2010 found that almost every British bank note in circulation is likely to contain traces of cocaine, with 1 in 20 likely to have very high readings.

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 the GP's test results being produced on his appeal against dismissal, and his clean disciplinary record over the last 22 years with the company, First Bus refused to reinstate Mr Bailes.

The employment tribunal was particularly critical of First Bus' failure to investigate the explanations put forward by Mr Bailes and the saliva test results, commenting that the employer had been "wholly uninterested in exploring that sensitive but important issue".

Effect on Employers

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

It was incumbent on the employer as part of a reasonable investigation to investigate the possibility that up to 88% of bank notes in circulation are contaminated as this finding should have had some significance in relation to Mr Bailes' drug test.

Posted on: 05/05/2015

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.

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