Flawed investigation by employer led to unfair dismissal for Unite the Union member
Fifty-five year old Alan Bailes, who had been employed as a bus driver for more than 22 years, was wrongly dismissed from First Bristol Limited for “gross misconduct” having tested positive for cocaine in a drug test at work.
Mr Bailes 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 and Thompsons Solicitors launched legal action and went on to secure substantial unfair dismissal compensation for Mr Bailes.
Unreliable saliva testing
On the day of the workplace drug test, Mr Bailes 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.
First Bristol Ltd used saliva tests on its employees to identify whether they had consumed illegal substances. Mr Bailes 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.
Employer refused to overturn decision dispute new evidence
At his personal expense, Mr Bailes 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, First Bristol Limited refused to reinstate Mr Bailes, who had no previous disciplinary record in his lengthy career history.
Mr Bailes’ family have faced a long drawn out struggle and severe financial hardship.
“We’ve been left feeling stressed, incredibly worried and upset, all for something I didn’t do.
Backing from Thompsons and Unite
“I’m sure First Bus don’t like the fact that the little man took them on and beat them and that they’ve been shown up at Tribunal. But I was accused of doing something I knew I hadn’t done and, with the backing of the union I was determined to fight back.
“I’ve learned first-hand the true value of being a union member. I will be eternally grateful for Unite backing me all the way and for Thompsons Solicitors’ continued support throughout.”
Difficult to find a new job
Mr Bailes 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.
In an attempt to undermine Mr Bailes’ case, First Bristol Limited suggested to the Tribunal that there was no proper reason for his not having found an alternative job driving buses. But when asked whether they themselves would employ a driver who was known to have been dismissed for failing a drug test, they had to concede that it was “unlikely”! The Tribunal ruled that Mr Bailes should receive the maximum compensation that could be awarded for his unfair dismissal.
Bruce Robin at Thompsons Solicitors, says: “Mr Bailes 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 his union Unite made all the difference as the employers stuck their heels in throughout the case.”