“I’ve been dismissed for failing to take a drugs test. Is this fair?”

by Direct2Lawyers on October 24, 2012

  • SumoMe

If you’ve been dismissed for failing to take a drugs test then whether the dismissal is fair or not depends on a range of factors. This includes (among other things) whether a fair investigation was carried out, whether a fair disciplinary procedure was undertaken, and whether your employer’s decision to dismiss you fell within the range of reasonable responses in the circumstances. We’ll therefore looking at the following issues to determine whether a dismissal was reasonable or whether an employee who has been dismissed for failing a drugs test has a case for unfair dismissal:

  1. Was a fair investigation carried out?
  2. Was a fair disciplinary procedure undertaken?
  3. Was the dismissal a reasonable decision in the circumstances?

Was a fair investigation carried out?

If you’ve failed to undertake a drugs test at work (or have simply failed the drugs test) then your employer will be understandably concerned about this. Although your employer is not obliged to carry out an investigation into the matter they often will, so as to establish the facts of the matter and to decide whether it’s necessary for them to initiate the disciplinary procedure. For an investigation to be fair it must be reasonably thorough, undertaken by an impartial person (or persons) and should allow you to adequately put your case (among other things). The procedure should also be relatively quick – long delays in carrying out an investigation and producing an outcome not only suggests unfairness but it also potentially escalates a situation if the employee isn’t being adequately informed of what’s going on.

You may be suspended during the investigatory process – indeed many employers will often revert immediately to suspension if there’s an allegation relating to drugs in the workplace. However, the decision to suspend you shouldn’t be a “knee jerk” reaction and your employer should be able to provide evidence that suspending you was the reasonable thing to do in the circumstances. It may be the prudent thing to do to obtain employment law advice at this point.

Was a fair disciplinary procedure undertaken?

This is crucially important. If your employer dismisses you but fails to undertake a disciplinary procedure then you may have a claim for unfair dismissal. Your employer should, if you’ve been accused of any offence relating to drugs in the workplace, carry out a disciplinary procedure. This would involve (among other things) gathering evidence (documentary and witness evidence), appointing a fair and impartial person to supervise your disciplinary procedure, allow you to put your case adequately and bring your own evidence (witness and documentary), and carry out the disciplinary procedure in an appropriately rapid and competent fashion. If you have doubts over whether your disciplinary is fair or whether you have been dismissed unfairly you should contact unfair dismissal solicitors to get an evaluation of your case.

Was the dismissal a reasonable decision in the circumstances?

Your employer must be able to demonstrate three things to show that dismissal was a reasonable decision in the circumstances:

  1. A reasonable investigation has been undertaken (as above)
  2. Your employer has a genuine belief that dismissal is necessary and appropriate (based on the outcome of the investigation)
  3. Your employer has an honest belief that dismissal is necessary and appropriate (based on the outcome of the investigation)

Your employer should offer you the chance to appeal your dismissal. If you are not offered the chance to appeal then your dismissal may have been unfair. Further, if you suspect that the decision to dismiss you was taken prior to the disciplinary hearing then you may have a claim for unfair dismissal.

Direct 2 Lawyers offers advice from employment solicitors

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