November 26, 2018

Kenneth Ball V First Essex Buses - Background Of The Case

Mr Ball had been a bus driver for First Essex for 20 years.

He was an employee with good character and exemplary service who during a drug’s test through his employment tested positive for cocaine in his saliva. 

Mr Ball stated that the day of the test he had been handling used bank notes from students.

He argued that due to the fact he has type 2 diabetes he has pain in his fingers from the blood sugar test and would often lick them to relieve it.

He denied that he would have taken cocaine as it would be irresponsible due to his diabetes and that he had hypertension as this could lead to heart problems or a stroke.

Mr Ball was dismissed by his employer for being under the influence.

A matter of days later and then again months later, he had paid for two hair follicle tests to demonstrate his innocence.

They both came back negative. However, they were rejected by First Essex during disciplinary proceedings as this type of test did not follow Company procedures. 

The Decision

Mr Ball took action against his employer in the tribunal and was successful that he was unfairly dismissed and also wrongfully dismissed, as the dismissal breached his contract.

He received more than £37,000 for loss of earnings and incurred expenditure resulting from the dismissal.

Judge Gary Tobin believed that First Essex were not willing to accept any other possible explanation as to why Mr Ball would have tested positive for cocaine in his saliva.

The bus Company did not have any policies that stated that an alternative external test could be conducted and then relied upon in the event of a disciplinary or dismissal.

The fact that First Essex had not considered the external test (paid for by Mr Ball) brought into question the reasonableness of their initial investigation.

The Company should have looked at why there was a difference between the saliva and follicle tests.

The negative result would have called into question the test that was conducted by First Essex and prompted an explanation by Mr Ball. 

Dismissal Based On Conduct

In cases such as these, a tribunal will consider whether the dismissal was fair.

If an employee appeals the decision by the Company, a correctly conducted appeal with a full investigation can reinforce the decision that the dismissal was fair.

To do this, they will look at the procedure that was used and whether it was fair. They would also need to determine that the result was in the range of reasonable responses of a reasonable employer.

To dismiss an employee for misconduct issues an employer would need to show;

  • An honest belief that the employee was guilty of the offence;
  • The employer had reasonable grounds for this belief, and;
  • That both of the above were as a result of a fair investigation.

The Tribunal would need to demonstrate that the employer was justified in dismissing an employee for the reasons they are stating. 

Summary

When looking to dismiss an employee, the decision must be fair and a response that is reasonable of an employer.

With conduct issues pay particular attention to whether there is the honest belief that they are guilty of the offence and that this is reasonable.

An investigation should take place resulting in justification for the decision.

Failure to action these points may expose the Company to Unfair or Wrongful dismissal claims.

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About the author 

James Rowland

James is the Commercial Director at Neathouse Partners and regularly writes articles surrounding issues in HR & Employment Law. Outside of the office, James is a keen Cricketer, playing in the Cheshire League for Nantwich CC. He also loves going to watch his football team, Crewe Alexandra. Feel free to connect with James on LinkedIn.

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