is this unfair?

[surreyguy]

I am posting this on behalf of my girlfriend so hope i can get some help.

 

A few weeks ago my girlfriend came home from work early in a terrible state.

 

She said that her name had been drawn for a random drug+alcohol test which she had no objection to because she had signed a document years ago to state she had no objection to the compnay conducting such tests.

 

She was choosen along with 3 others. 2 male + 2 female. The collection guy told her that he had another guy with him who was training to become a collection agent and asked did my girlfrind have any objection to this (the other guy IS fully trained , but ONLY JUST and he has to attend so many tests accompanied by another collector before he is free to do the tests alone) my girlfriend stated that she had no objections.

 

So , my girlfriend goes to the bathroom to provide her sample of urine and the other female is in a little room just next door in a SEPERATE bathroom.

 

My girlfriend handed her sample to the agent and just as she did so THE OTHER AGENT (WHO WAS IN A ROOM NEXT DOOR) called to the agent who was conducting the test on my girlfriends sample.

 

When this happened , the collection agent went outside the room (my girlfriend THINKS HE STILL HAD HER SAMPLE IN HIS HAND) and met up with the OTHER testing agent supposedly to see why he had called him?

 

Both testing agents were out of the prospective rooms for around 3 mins?

My girlfriend COULD NOT SEE THE TWO TESTING AGENTS STANDING OUTSIDE THE ROOM , ALTHOUGH SHE COULD HEAR THEIR MUFFLED VOICES.

 

When he came back in he apologised to my girlfriend and continued to do the test on "her" sample.

 

After a few mins he said to my girlfriend im sorry madam but it appears your'e sample is returning a positive result for 2 illegal substances!

 

My girlfriend HAS NEVER consumed a drug in her life of that we are sure . BUT......WE KNOW FOR A FACT THAT THE OTHER GIRL BEING TESTED DOES INDULGE IN RECREATIONAL DRUGS.....

 

My girlfriend said BUT I DONT EVEN SMOKE CIGARETTES and the agent told her the labratory will run intensive tests and get in touch with you . Dont worry you will be ok if you are sure you dont do drugs!

My girlfriend was in bits , she was suspended and after a week the lab reported that the test WAS positive for drugs!

 

Upon hearing this , my girlfriend was called to a disciplinary and before she had the chance to put her backside onto a seat her boss (a bitch of a woman) simply said to her "sorry but your'e test is positive so we must terminate your'e contract!

 

She wasnt interested in anything girlfriend had to say and just swiftly ushered her out the door.

 

Girlfriend appealed and this was heard by a higher manager but the decision to terminate was up-held. Girlfriend has told the appeal manager what happened but she said "sorry , we contacted the testing agent and they say that YES , THEY DID LEAVE THE ROOM BUT........THEY ARE SURE THAT NO MIX UP OCCURED BETWEEN GIRLFRIENDS SAMPLE AND THAT OF THE GIRL BEING TESTED NEXT DOOR .(who incidently received a NEGATIVE result......)

 

So the end story is that girlfriend has been branded a "druggie" and has lost her job (of 18 years!!!!) The employer wants to hear nothing more from girlfriend !

 

Girlfriend has lodged an ET1 which been accepted but employer states to us that they will fight this all the way....

 

Any opinions on how this case would go ?

 

Surely as soon as that collecting agent set foot outside the testing room the chain of custody cannot be relied upon?

 

Girlfriend begged to be allowed to donate another sample as soon as management told her she was suspended( half hour after original sample) she was so desperate she even said that someone could accompany her into the very toilet booth to wtch her pee lol but her request was refused.

 

Please , no judgements , my girlfriend is devestated over this and remember SHE HAS NEVER EVER CONSUMED ANY DRUGS .

[kurvaface]

Sounds very iffy to me.

 

I am suprised that such a final decision has been made on the basis of one test.

 

This CAGger will probably provide the best advice for this:

http://www.consumeractiongroup.co.uk/forum/member.php?u=243017

I've sent a message pointing out this thread.

 

Good luck

Edited March 17, 2010 by kurvaface

[surreyguy]

Thanks .

 

I have sent a pm in the hope that the user you mentioned will take a look and offer opinion.

 

Everyone else....even if you dont think you have the knowledge to answer my post , if you read it could you just take the time to offer an opinion?

 

Even just a poll of opinions will (maybe) just offer my girlfriend some encouragement.

 

I think that even though the employer states they will fight this all the way , they are bluffing!

 

I think they now KNOW that they were in the wrong...

[Uncertain]

The chain of evidence certainly wouldn't be good enough if this was a criminal case but sadly (and I hope I'm wrong) it might be acceptable in a civil matter such as this. As you may know an employer only needs a reasonable belief of wrongdoing in an employment matter, not the criminal level of proof beyond a reasonable doubt.

 

Your girlfriend needs professional legal advice on this. If they have admitted in writing that the continuity of evidence was not perfect this may help.

 

Has she any proof that they refused her offer to provide a second sample? This would be a great help as any reasonable employer should have accepted this in view of the serious implications.

[Bigredbus]

When did the incident happen?

 

Could you get to your GP and request an independant test to be performed ASAP?

 

In the meantime, raise a grievance, informing your employer that you are now seeking independant review of your test by your GP. Request that a true and signed copy of the results of her test be sent to you forthwith.

 

However, and because the incident has happened a while ago, you would have to ask your GP if a test read 'today' could contradict the results of the test performed by her employer and if not, which test, or tests, could she carry out to prove that the positive readings on that test could be challenged.

 

I am sure that your GP could help here... the other one, of course, would be to require the employer to re-test both persons on a Monday morning (after a raving weekend)...

[kurvaface]

However, and because the incident has happened a while ago, you would have to ask your GP if a test read 'today' could contradict the results of the test performed by her employer and if not, which test, or tests, could she carry out to prove that the positive readings on that test could be challenged.

 

Some drugs present in urine for a long period of time. Some drugs are detectable by blood test.

 

What drugs were tested for?

[surreyguy]

Thank you for all the replies.

 

My girlfriend has already visited her Gp and had a full drug screening conducted.....all results returned NEGATIVE , these tests were conducted around 5 days after the work place ones? but....her employer WONT accept them as evidence as chain of custody cannot be confirmed!!!!!

 

Yes , we have it in writing that the employer was not willing to conduct a re-test .

 

We also have it in writing that the collection agent ADMITS that he left the room for around 3 mins.

 

Any other suggestions?

 

thanks for the help by the way.

[surreyguy]

The drugs detected were cannabis and codeine. Incase that helps.

 

 

surreyguy

[kurvaface]

Cannabis half life in the blood is 30 to 120 days, therefore it would not be possible for the test result from your GP to concur with the result of the employer. One of them is wrong.

[elpulpo]

My first thought is whether you could find out if the original sample is retained. If it was, you might be able to have it DNA tested to establish that that's not yours. I'm no scientist, obviously, and I don't know if this is feasable. It does seem that perhaps a mix-up has occured.

It does seem strange that they didn't take another sample from you after the first sample had been deemed to be positive.

The problem with cases like this is that the way an ET looks at such matters is by considering was it reasonable of the employer, at the time of the disciplinary, to reach the decision they did.

Matters in civil law, as opposed to criminal law, are decided by 'balance of probability' rather than 'beyond all reasonable doubt'. If you're unable to disprove the original allegation, it might not bode well for the outcome of the tribunal.

Obviously, this is a very serious matter, which could have a long ranging effect on your future employment prospects.

I think it would be worth, if you haven't done so already, speaking to a solicitor specialising in employment law. You should be able to have a free, initial consultation.

[elpulpo]

Sounds very iffy to me.

 

I am suprised that such a final decision has been made on the basis of one test.

 

This CAGger will probably provide the best advice for this:

http://www.consumeractiongroup.co.uk/forum/member.php?u=243017

I've sent a message pointing out this thread.

 

Good luck

Thats me! What are you suggesting? I'm clean, have been for days.

[kurvaface]

Thats me! What are you suggesting? I'm clean, have been for days.

 

:grin:

[elpulpo]

Thank you for all the replies.

 

My girlfriend has already visited her Gp and had a full drug screening conducted.....all results returned NEGATIVE , these tests were conducted around 5 days after the work place ones? but....her employer WONT accept them as evidence as chain of custody cannot be confirmed!!!!!

 

Yes , we have it in writing that the employer was not willing to conduct a re-test .

 

We also have it in writing that the collection agent ADMITS that he left the room for around 3 mins.

 

Any other suggestions?

 

thanks for the help by the way.

This is very encouraging. Could sway things significantly.

 

Codeine? That's an over the counter painkiller, I can't see that that is a banned substance, unless there's a specific clause of the employment contract that states she can't work whilst taking it. What's her job?

[Bigredbus]

Cannabis half life in the blood is 30 to 120 days, therefore it would not be possible for the test result from your GP to concur with the result of the employer. One of them is wrong.

 

I absolutely agree...

 

Following a grievance, the next step would be to go for 'unfair dismissal'... In relation to recent case law involving random drug testing, it is not clear that such policy can be justified... employers should, it was argued, act on the basis of evidence of impairment...

[kurvaface]

This may be of ineterest. I am no legal busy body so perhaps someone more informed could comment on its relevance:

 

A study in 2004 by the Independent Inquiry into Drug Testing at Work found that attempts by employers to force employees to take drug tests could potentially be challenged as a violation of privacy under the Human Rights Act 1998 and Article 8 of the European Convention of Human Rights.[20] However, this does not apply to industries where drug testing is a matter of personal and public safety or security rather than productivity. European Union legislation is expected in the future to clarify the legal situation regarding workplace drug testing.

 

[surreyguy]

Hi.

 

We have lodged a complaint of unfair dismissal. The ET1 was lodged as soon as we found out the appeal decision had been up-held.

 

Along the line of the appeal process it became evident that the "random" selection hadnt exactly been RANDOM!

 

To clarify. My girlfried was assured the whole time that her name had been selected RANDOMLY from a list of employee's....then when the appeal was conducted , the company were forced to admit that the reason my girlfriend was tested was actually because another employee had raised concerns that the day before my girlfriend hadnt seemed "quite with it" , my girlfriend was totally fine the day before as far as we are both concerned though (it should be mentioned that girlfriend and the employee who raised concerns HATE each other with a passion !)

[honeybee13]

Hi there. Your poor girlfriend, she must be devastated after working there for so long.

 

I'll leave the grievance and ET thoughts to the experts who've already appeared on the thread, just wanted to say that I don't think the company acted logically at all, while it sounds as if your girlfriend did. My opinion is that it's unfair, and I hope the others can guide you through the actions to take.

 

My regards to your giirlfriend, HB

[elpulpo]

Probably not relevant if the employee has previously given their contractual agreement.

[surreyguy]

Sorry , forgot to add , my girlfriend works in a warehouse. Just incase that matters.

 

Nothing OVERLY safety critical about the role she holds....but obviously the company dont see it that way?

 

The company drug testing policy states that it will conduct random testing on 10% of employees yearly but when we requested their figures for the year in question they are unable to supply the info....they confirm that they have NOT tested the 10%.......only 3 random tests have been conducted in the past 2 years...........

 

The thing that bothers me is that the company state that if girlfriend ADMITS to using drugs they will help her by way of counselling and support and that she could retain her job....but girlfriend is not willing to lie in order to hold on to her job , she says she would rather be sacked for the truth than keep a job based on lies.

 

surreyguy

[surreyguy]

Thanks to honeybee and all the others who are takin the time to offer advice , its most definatly appreciated.

 

surreyguy

[elpulpo]

 

 

The thing that bothers me is that the company state that if girlfriend ADMITS to using drugs they will help her by way of counselling and support and that she could retain her job....but girlfriend is not willing to lie in order to hold on to her job , she says she would rather be sacked for the truth than keep a job based on lies.

 

surreyguy

Have you got that in writing?

It doesn't strike me that they've examined any alternatives to dismissal.

How long did she work there?

[Bigredbus]

a) Random (?) test on your girlfriend, upon colleague stating that she was not 'quite there' the previous day.

 

b) They break the chain of custody (3 minutes absence during which anything can happen) and it is asserted by letter.

 

c) They refuse results of tests conducted by GP on the grounds that chain of custody cannot be confirmed...

 

d) ET1 lodged...

 

Do you have true and signed copy of the hearings?

Results from GP?

Results from test conducted at work?

[honeybee13]

Guys, do you think doing a subject access request could help here? I think it can be used with a company, am I right?

[elpulpo]

Guys, do you think doing a subject access request could help here? I think it can be used with a company, am I right?

Yeh.

[kurvaface]

Have you got that in writing?

It doesn't strike me that they've examined any alternatives to dismissal.

How long did she work there?

 

 

18 years.

 

Surely that alone holds some weight.