A 62-year-old former union representative and bus driver for over 20 years, suffering from diabetes and hypertension, with an exemplary employment record has won his unfair dismissal claim after a random drugs test by his employer First Essex Buses implausibly showed that he tested positive for cocaine.
Knowing that he had not taken any illegal substances, Kenneth Ball took two additional hair follicle tests, widely accepted as being more reliable. They were both negative.
The employer refused to take these two tests into account, refused to consider the possibility of cross-contamination through their own poorly administered test and, although the company acknowledged this possibility in communications between themselves, they refused to take into account the implausible nature of Mr Ball’s guilt.
Following a three day hearing at the East London Tribunal, Employment Judge Tobin found that Mr Ball had been both unfairly and wrongfully dismissed, the dismissal being both procedurally and substantively unfair.
Judge Tobin was particularly critical of the behaviour, attitude and absence of critical thinking of the managers and HR advisors involved in the dismissal, finding that they had simply “closed their minds to all possible explanations that did not fit their predetermined conclusions.”
Referring to them variously as “puerile” and “grossly unfair”, Judge Tobin found that the managers throughout the hierarchy of the company including the appeal hearing manager, Reverend Davies were “committed to one outcome only and that was to find the Claimant guilty”.
Unite regional secretary, Peter Kavanagh, said: “First Essex Buses cruelly plunged Mr Ball into a living nightmare after they disgracefully and wrongly sacked him. Managers refused to accept two additional, more reliable tests nor did they publically acknowledge the implausible nature of Mr Ball’s guilt even though they privately acknowledged this possibility in communications.
“Thankfully with the support of Unite Legal Services, Mr Ball has been entirely exonerated and damages are now payable to him by his former employer.”
Unite legal officer, Nicky Marcus, said: “Unite is delighted about the Tribunal’s highly significant findings. Winning an unfair dismissal case is notoriously difficult because the law is skewed so significantly in favour of the employer. Kenny Ball has been entirely exonerated, the damages now payable to him by First Essex Buses will help bring him and his wife some closure to his terrible ordeal.”
Unite Legal Services won a similar case, Bailes v First Bristol Ltd in 2015. Alan Bailes lost his job of 22 years when he was asked to take a saliva test that came back positive for a class A drug. Bailes, 55, insisted that he had never taken any illegal drugs but was sacked for gross misconduct by First West of England, part of FirstGroup. A Tribunal found that the positive saliva test was likely to be the result of the bus driver in question handling contaminated bank notes. The bus driver wrongly accused of using cocaine won a substantial payout after arguing that the traces of the drug must have come from passengers’ money.