In Bailes v First Bristol Ltd, a saliva drug test conducted on Bailes picked up traces of cocaine. Bailes was adamant that he had never taken cocaine. His explanation for the positive test was that any drug traces must come from handling the fares paid by some passengers on the day the test was conducted. To prove the point, Bailes paid for an independent drug test which confirmed that he had not taken cocaine in 90 days prior to the test.

A tribunal upheld Bailes’ unfair dismissal claim primarily on the basis that the employer had failed to conduct a reasonable investigation in the circumstances, and in particular, Bailes’ contention that, as an employee with 22 years’ service, he had never taken cocaine as proven by his own independent test. According to the tribunal, the employer showed no interest in exploring Bailes’ explanation when the alleged misconduct was a serious and sensitive issue. Bailes was awarded £83,910 taking into account that while he had tried his best to find an equivalent job, employers in the public transport industry have serious concerns in circumstances where a failed drug test is involved. In addition, the employer had failed to investigate properly, for which there was no reasonable explanation and because this was a breach of the Acas code of practice on disciplinary and grievance procedures, a 20% uplift was included.

This case serves as an example of the consequences of failing to adopt a reasonable procedure given the all circumstances of the case, including an investigation which is within the range of reasonable responses. Here, information is available in the public domain which shows that bank notes and coins can be contaminated by drugs and the employee had paid for an independent dugs test which showed no use of cocaine in the previous 90 days.  

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