Successfully challenging a decision to dismiss.

When bus driver Scott was dismissed for refusing to take a drugs test the outcome appeared a forgone conclusion.

The bus operator that Scott worked for carried out random drug and alcohol testing across all roles.

Scott, who had worked for the bus operator for eight years, told the tester he would only take the test if he could speak to his boss first.

He said he needed to explain himself. Scott’s manager refused to speak to him.

Insistent Scott was adamant that he had nothing to hide, but he was suspended from work for his refusal to take the test.

Scott, who had a long history of depression, later visited his GP and was subsequently signed off work sick.

The bus company invited Scott to a disciplinary hearing to face an allegation of unreasonably refusing to take an alcohol and drugs test.  

Scott was off sick at the time and said he was not well enough to attend the hearing.

However, he received a letter two days later informing him that the hearing proceeded in his absence, the allegation was upheld, considered an act of gross misconduct and the outcome was dismissal. The letter said he had the right to appeal.

Scott wrote a letter of appeal and instigated the disciplinary appeals process. He was aware of a colleague who had been sacked and reinstated, which is the appeal outcome he wanted.

He contacted his workmate for advice.  He gave him details for the Castle Associates Employee Support Centre.

Scott explained to our representative that a over a year earlier he suffered a neck and leg injuries following a road traffic accident while driving his bus. The accident had been reported and documented.

He said treatment initially had positive results, but the pain has never really gone away. Scott said it had got worse prior to the test.

He said he had been purchasing and taking very strong over the counter painkillers for quite a while. Scott said he knew it meant he had a problem, and he has since sought medical help from his GP.

Scott said he had been warned overuse of the powerful painkillers can result in a positive drugs test. It is why he was desperate to speak to his manager and explain himself before taking the test.

Our representative felt there were significant mitigating factors and evidence in support of Scott’s appeal. It was also clear that the disciplinary process was unfair.

Prior to the appeal hearing our representative reviewed a copy of the alcohol and drugs policy . The policy made it clear the company would be supportive of an employee with a problem.

Our representative produced evidence provided by Scott of his ongoing medical treatment and explained his use of non-prescription painkillers containing the opiate drug, codeine.

The hearing was told that Scott had also suffered long-term with depression, which the employer was aware of, and as a result it may be considered a disability under the Equality Act 2010.

It was explained that Scott was suffering poor mental health at the time of the test, which would have influenced how he reacted and dealt with the situation. It was suggested that to punish him too severely for his reaction to the test could amount to discrimination.

The appeal hearing was also told that Scott had a good working relationship with his manager, which is why he was desperate to speak to him and come clean before taking the test.

The appeal hearing was told Scott was now able to be open and honest about his problem, was getting help and he should be supported, which is the approach company policy says would be taken if an employee has a alcohol or drug problem.

Our representative added that the decision to dismiss Scott without a disciplinary hearing was grossly unfair. He pointed out a decision to dismiss, regardless of is the reason is justifiable, can be found to be automatically unfair if the process conducted was unfair.

Scott’s appeal was successful and he was reinstated.

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For employment law advice or if you are affected or want information and support by any of the issues in this article please give us a call. 0333 772 0611