is this unfair?

[surreyguy]

They are most certainly in breach of the chain of custody - I am trained in drug and alcohol testing and I know for definite that the sample should never be out of view of the donor. Also, if the first sample proves positive a second should be taken.

 

The lab which tested the urine should retain a sample in case the test is challenged legally. This sample should be made available for further testing and I suggest you ask for a DNA test to prove it is not your girlfriend's urine.

 

If your girlfriend was tested because someone made a statement then she was not randomly tested and the employer had acted out of procedure. The whole episiode is a travesty and I sincerely hope you take this all the way.

 

It might be a good idea to get a free consultation session with an employment solicitor.

 

 

 

Ell-enn.

 

Thanks for such a positive response !

 

Theres actually nothing in the compnaies drug or alcohol policy which states that they are obligated to do a second test if the first comes back as positive.........Would that vary from company to company do you think or is that just commom procedure?

 

Also to your next point.......The alcohol and drugs policy states that RANDOM tests are allowed , so surely the company will just state that they were within theirs rights to test my girlfriend "randomly" EVEN THOUGH THEY DIDNT , WE HAVE IT IN WRITING IN THE FORM OF MEETING MINUTES ETC WHERE THEY CLEARLY STATE TO HER "FOLLOWING THE RECENT RANDOM DRUG TESTS ETC...it was only when she received her appeal decision that the appealing officer wrote in her decision letter "you were tested following a concern raised by a fellow employee"

 

We did visit a solicitor the day on which she was sacked and we were only with her this solicitor for around 1.5 hours (over the space of that day and the day we received the appeal decision ) and this solicitor sent us a bill for £200 !!! Needless to say we couldnt afford a solicitor to fight this at that cost lol

 

Ell-enn , because of your post , and your comment that you have experience on this subject , you have actually gave us some fresh hope that maybe its such a clear cut case that one of two things will happen

 

1) If the employer see's that we dont intend to back down they will admit they handled things incorrectly and offer to put it right before it goes to hearing

 

2)With the help of all the knowledgable posters on here , i can gain enough knowledge to represent her myself...

 

Thanks again , an invaluable post.

[elpulpo]

I'd say your immediate plan of action proceeding with the claim consists of doing 2 things, Surreyguy.

Firstly, I'd go and see your GP and see if you can get a hair sample test, or something that will provide long term definitive proof that you are not a drug user. If the GP can't do that, look at reputable, private companies. If you have to pay, you can probably add the cost onto any schedule of loss you submit to the ET.

Secondly, I'd look towards getting the retained urine sample DNA tested to prove that it's not yours. Probably best to write to the former employer formally requesting that it be agreed between you that this be carried out.

You might well get no joy from them, in which case I'd say that you may have to wait a while until the ET3 is received by the ET and case management begins. Then put in a request to the ET Judge that they order this take place.

[Ell-enn]

Just a thought - check your home insurance policy, you may have legal cover included, a lot of policies do and you don't always realise you have it until you need it!

[surreyguy]

Just a thought - check your home insurance policy, you may have legal cover included, a lot of policies do and you don't always realise you have it until you need it!

 

 

Thanks again guys.

 

Yes ell-enn , we have checked our policy and we DO have the legal cover , we have just applied to request legal representation so fingers crossed we get it .

 

Thanks again.

 

 

Elpulpo - thanks for the post , we are looking into getting all your suggestions underway.

 

Thanks again

[surreyguy]

Oh , sorry Ell-enn

 

You MAY know the answer to a query we have :

 

Is a standard Occupational Health Consultant AUTOMATICALLY trained as a Medical Review Officer or is there a specific qualification they need to hold to be an MRO ?

 

Just asking because girlfriends alcohol and drugs policy states that ALL positive results will be sent to a QUALIFIED mro for examination , this MRO will then inturn contact ALL donor's of a positive result , the purpose of this contact is so that the MRO can eliminate other causes of the positive result acheived , i.e prescribed medication which the donor may be taking (my girlfriend is on LOADS of medication )

 

In her case , the results were sent to the company OHC who NEVER contacted my girlfriend to discuss matters.

 

Is this an ok procedure or should she have been contacted before the employer was informed ?

[Bigredbus]

Glad to see that your case is being built up nicely and strongly...

[surreyguy]

Glad to see that your case is being built up nicely and strongly...

 

 

BigRedBus

 

Yes , the advice and help being offered on this forum is excellent !

 

Just to know that people take time out of their busy lives to offer help to people they dont even know......well , its amazing .

 

We appreciate the encouragment and hope that one day WE are in the position to help someone else .

 

Surreyguy

[Bigredbus]

If you intend to defend the case before an ET, your experience will be invaluable for many...

 

Well done again...

[elpulpo]

Employment Tribunal Claims: Tactics and Precedents

This is a good site to have a read through if you might be heading for an ET.

Don't let it daunt you.

[honeybee13]

Hello Surreyguy and your girlfriend. I wish you all the luck in the world with your case and have every hope you will win out in the end. The employer's reasoning defies logic to my mind. I can hardly believe how far your thread has come since you first posted, and how many posts it has already!

 

That is a lovely sentiment about helping others and I really hope you do, once your own trials and tribulations are over. I'm sure many of us share our previous experiences in an effort to help others.

 

I think you will be a great asset to the forum in the future.

 

My best to you both, HB.

[surreyguy]

Thanks all .

 

Honeybee , are you yourself having current trouble in employment or are you going through tribunal ?

 

Maybe yo have already been through it all already and are here simply to offer your experiences to others ?

 

Whichever it is im glad your here.

 

Guy

[surreyguy]

Employment Tribunal Claims: Tactics and Precedents

This is a good site to have a read through if you might be heading for an ET.

Don't let it daunt you.

 

 

Elpulpo

 

Thanks for the link . We had been reading it , its amazing the amount of info on the net about all this stuff lol.

 

Theres also a book it has been recommended we buy....think its by somebody cunningham ? Apparently it cost £35 but is worth every penny if you intend to represent yourself/someone else so guna check it out .

 

 

guy

[elpulpo]

Elpulpo

 

Thanks for the link . We had been reading it , its amazing the amount of info on the net about all this stuff lol.

 

Theres also a book it has been recommended we buy....think its by somebody cunningham ? Apparently it cost £35 but is worth every penny if you intend to represent yourself/someone else so guna check it out .

 

 

guy

Aye, written by the people who do the above site.

[honeybee13]

Hello Surreyguy, thank you for the message. I will send you a PM, can't say everything on open forum.

 

Please try to have some time for yourselves and not spend all the time on the forum. [i'm a fine one to talk .]

 

My best, HB

[surreyguy]

Well Guy's.

 

As an up-date to all the people who kindly offered help.......

 

In the post today we have just received a copy of the employers ET3.

 

Its just as i thought , they state that they intend to defend all allegations made. I knew they would fight it lol.

 

So , their response has been accepted and there is a CMD planned.

We have been told to request any documents that we require from the other party and to request any additional information too.

 

Does every case hold a case management or is this a way of digging out the weak cases befor they go the whole way to tribunal ?

 

Thanks guys

[Bigredbus]

Case Management Discussions (CMD) are generally held when further information is required by either party, or/and to give directions or orders...

 

This practice is general and does not imply weakness in the case...

[elpulpo]

Aye. If the ET Judge thought the application weak, They's have ordered a Pre-Hearing Review.

Have you made any progress regarding getting a definitive drug test and requesting from the employer that the remaining wee sample is DNA tested?

[surreyguy]

Aye. If the ET Judge thought the application weak, They's have ordered a Pre-Hearing Review.

Have you made any progress regarding getting a definitive drug test and requesting from the employer that the remaining wee sample is DNA tested?

 

 

Hi and thanks for the responses.

 

Yes , we are going to have a hair sample done . When we enquired about this type of test we were told that an inch of hair can detect illegal substances for a month (ok , maybe it was explained more technically than that but hey lol)

 

Girlfriends hair is long so we will get an accurated result from that.

 

Even if the employer wont accept it as evidence (whcih they have said they WONT , im dam sure an employment tribunal judge will !!!

[elpulpo]

Don't lose sight of what you need to show an Employment Tribunal here.

It might well not be enough for you to merely prove that the test result was wrong. You need to show that there were such failures in the process by which the employer went about establishing the accusation, that it was completely unreasonable of the employer to come to the decision they did.

 

What an ET considers is, 'Was it reasonable for the employer to decide to dismiss the employee given the information they had at the time of the decision?'

Clearly, when one examines the full circumstances, no.

But on immediate face value it might seem so.

[surreyguy]

Yes Elpulpo , you are right lol , im getting carried away !

 

Its difficult to remember that although i know the whole circumstances , its up to us now to paint the full picture so that the tribunal judge can understand EVERYTHING that went wrong procedure wise.

 

It lucky i have this forum keeping me grounded lol.

 

Thanks again

[Bigredbus]

He, he...

 

You have all the cards up your sleeve... it is easy to get carried away...

 

I see that you are going for the DNA test... that is a very good point as DNA analysis are now routinely accepted by the courts as giving reliable evidence...

 

What would you do if the sample was to be your girlfriend's?

[surreyguy]

He, he...

 

You have all the cards up your sleeve... it is easy to get carried away...

 

I see that you are going for the DNA test... that is a very good point as DNA analysis are now routinely accepted by the courts as giving reliable evidence...

 

What would you do if the sample was to be your girlfriend's?

 

 

Hi brb.

 

Sorry dont quite follow what you mean when you say "if the sample was to be your girlfriends"

 

I KNOW for a fact that the sample IS my girlfriends so im assuming you mean when its proven to be her's what will my next step be?

 

Thanks again for the responses , they are appreciated.

[honeybee13]

Hello again surreyguy.

 

As BRB isn't here at the moment, and at the risk of barking up the wrong tree, I think BRB may be playing devil's advocate, as he/she does from time to time. The question could be: what would you do if the DNA test proved that the original sample is your girlfriend's?

 

Of course, you also have information on here about which medications can cause a positive result. BRB, sorry if I misunderstood.

 

My best to you both, HB

[Bigredbus]

[Good morning 'honeybee13' - Hope you're ok today!]

 

HB, that is what I meant, indeed...

 

'surreyguy'...

 

I am, nevertheless, sceptic as per the test you want to run...

 

The hair test will demonstrate that no illegal drug(s) are present in the sample...

 

I thought (that's me, constantly thinking - and was under the impression) that the test would be to disprove that the urine sample did not belong to your girlfriend... which would have had a devastating effect on the respondant.

 

Now, I am not a biologist but if DNA can be extracted from the remaining sample of urine kept at the lab (read: Powered by Google Docs), then you would be able to bring the respondant to their knees by proving that the sample does not belong to your girlfriend, and that the chain of custody had effectively been breached. Once again, that is only speculation, but if that can be done, you could have a serious advantage on the respondant.

[honeybee13]

Agreed, BRB. On a quick re-read of this thread, I'm confused about whether the employer has or will give permission for the original or back-up urine sample to be DNA tested.

 

But if the hair test is designed to pick up any drugs in the lady's system going back some months, then a negative result could prove the urine test wrong, or at least inconclusive couldn't it?

 

Playing at being BRB for a minute, how do they know the hair they're testing is the right person.....

 

[i'm good thank you BRB, hope you are.]