Employment Law – the importance of carrying out a reasonable investigation

Tania Longmire
By Tania Longmire May 12, 2019 15:15 Updated

A recent employment tribunal case has underlined the importance of the investigation stage in disciplinary proceedings for golf club employers, writes the National Golf Clubs Advisory Association (NGCAA).

A 61-year-old diabetic bus driver was dismissed by his employer, First Essex Buses Limited, following his failure of a drugs test where he had tested positive for cocaine. The employment tribunal, however, found that his dismissal was unfair.

Mr Ball was selected to undergo a random drugs test in accordance with his employer’s drugs and alcohol policy. After providing a saliva test, the result returned positive for cocaine. Mr Ball protested his innocence, denying that he had ever used drugs and saying that the test may have been contaminated. He said that he had not been required to wash his hands or wear gloves when handling the saliva sample and that during his shift he had been handling banknotes which could have been contaminated with cocaine. Further, he argued that cocaine could have got into his system by him licking his fingers, which he often did due to carrying out blood prick tests for his diabetes condition.

In order to try and prove his innocence, Mr Ball provided his employer with the results of a hair follicle test, which he had paid for himself and which showed no trace of cocaine in his system.

He was invited to a disciplinary hearing and dismissed for gross misconduct. The results of the hair follicle test were rejected by his employer. The reason for the rejection of that test appears to have been that the hair follicle test had not been carried out by the employer’s tester.

Mr Ball appealed internally against his dismissal twice, but in both instances the dismissal was upheld. The employer, as part of that appeal process, consulted with the tester of the saliva sample who stated that it was unlikely that a positive result could be produced in the way that the claimant alleged – that is, through contamination from banknotes and the absence of gloves or handwashing. Neither of the appeal hearings took Mr Ball’s hair follicle test into consideration.

The employment tribunal found that Mr Ball had been wrongfully and unfairly dismissed. It held that the employer’s investigation and decision had not been within the band of reasonable responses. It found that the process was flawed on numerous points and stated that a reasonable employer would have re-tested Mr Ball given the doubts raised, the seriousness of the accusations and the potential impact it would have upon him.

In this case, Mr Ball was awarded almost £40,000 in compensation.

Golf clubs: this underlines the importance of carrying out as much

investigation as is reasonable in the circumstances, including consideration of any conflicting evidence that may be produced by an employee who is facing disciplinary proceedings. An employer should not simply ignore evidence put forward by an employee, since it could indicate a pre-determined outcome and lead to a finding of unfair dismissal.

 

For more advice on recruitment, employment or other matters of law affecting golf clubs, please contact NGCAA chief executive Alistair Smith. 

(New address) The National Golf Clubs’ Advisory Association (NGCAA)

The Media Centre, Emirates Riverside,

Chester-le-Street, County Durham, DH3 3QR

Tel: 01886 812943

email info@ngcaa.co.uk

www.ngcaa.co.uk

 

Tania Longmire
By Tania Longmire May 12, 2019 15:15 Updated
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