Unite Legal Services defends bus driver wrongly dismissed by employer for “gross misconduct”

Fifty-five-year-old Alan Bailes, who had been employed as a bus driver for more than 22 years, was wrongly dismissed by his employer for “gross misconduct” having tested positive for cocaine in a drug test at work. 

Alan had another plausible explanation for the result but his employers wouldn’t listen in what an employment tribunal ultimately condemned as “a flawed investigation”.

Unite Legal Services launched legal action and went on to secure substantial unfair dismissal compensation for Alan.

On the day of the workplace drug test, Alan had handled several hundred pounds of cash, which research shows is commonly contaminated with cocaine. In the UK it is estimated that upwards of 88% of bank notes carry detectable traces of the drug.

Alan’s employer used saliva tests on its employees to identify whether they had consumed illegal substances. Alan was not invited to wash his hands before the drug test and had to handle the swabs used to collect his saliva sample both before and after. The fact that he had eaten his sandwiches just before the test increased the chance of hand to mouth contamination.

There is no national standard or government endorsed cut-off level for saliva testing and, as a result, it is sometimes considered unreliable, particularly when compared with urine or hair testing, which is regularly accepted by the courts. 

At his personal expense, Alan provided a hair specimen covering a history of 90 days and the result was negative for cocaine and its metabolites. However, despite this new independent evidence, his employer refused to reinstate him despite having no previous disciplinary record in his lengthy career history.

Alan’s family has faced a long drawn out struggle and severe financial hardship.

He said: “I was accused of doing something I knew I hadn’t done and, with the backing of Unite Legal Services I was determined to fight back. I’ve learned first-hand the true value of being a union member.”

Alan obtained a part-time job in 2013 and continues to look for alternative work to bring his earnings up to the level he received before his unfair dismissal. He has been straightforward about the reasons for his dismissal and that has inevitably caused issues as he has tried to gain further employment. 

Malcolm Green, regional officer at Unite the Union, said: “Alan and his family have suffered enormously and it was particularly pleasing to see the Tribunal back his version of events in such robust terms. 

“In particular, they entirely accepted that his future career prospects have been affected by the unfair dismissal, and that there was an onus on the employer to carry out proper investigations before dismissing such a long-serving employee with an impeccable record. Knowing that he had the backing of Unite legal Services made all the difference as the employers stuck their heels in throughout the case.”