is this unfair?

[Bigredbus]

... huh!

 

Nah! no more Chelsea fan than a Manchester or any other team fan...

[surreyguy]

Hi guys.

 

Im just back .

 

BRB - I see where the flow is going here , when you set it out the way you have its clear that procedure HAS NOT been followed .

 

In my opinion a reasonable employer would have said ; "ok , theres a posibility that these tests have been hindered so lets have both conducted again INDIVIDUALLY THIS TIME !

 

A reasonbable employer would have conducted a full and thorough investigation BEFORE DISMISSAL

 

A reasonable employer would have told the employee the reason for testing i.e was it random or for cause ?

 

A reasonable employer would allow the employee the option of having the sample re-tested at a lab of THEIR OWN choice (even if that meant THE EMPLOYER had to ship it to this lab )

 

A reasonable employer would have followed what they had written in their OWN drug and alcohol policy !

 

I could go on and on here but to be honest the penny really has just dropped !!!! Its just clicked how strong a case my lovely girlfriend has!

 

Thanks BRB , appreciated.

[Bigredbus]

No problems... 'surreyguy'...

 

Let us push the story a bit further...

 

Her company's policy, in terms of disciplinary actions taken in cases like this one, states that...

 

Anyone who's drug's test is returned positive will be summarily dismissed...

 

Her sample is returned positive... she is dismissed...

 

Hence their reply in that letter/meeting...

[Bigredbus]

I am not trying to confuse you... just trying to make you understand how a court will look at the case...

[surreyguy]

BRB sorry , im actually a bit lost after that last post from you (apologies , its been a long stressful day lol)

 

Are you saying that the tribunal MAY come to the conclusion that the employer has acted reasonably because they were within their rights to terminate girlfriends employment on the basis of the positive test result?

 

Lol i think i have just returned to earth with a (very painful) bump lol

 

thanks BRB

[kurvaface]

I think it's more being devil's advocate. You must be prepared for all lines of argument.

[Bigredbus]

LOL...

 

Absolutely... that is the very first statement that you must keep in mind if you intend to defend the case in court... Do not lose sight of this one... That is where the respondent will build their case...

 

After that, you will have to build your claim in a logical and rationale way, demonstrating that the company has not follow procedures and regulations...

 

Sorry about the severe bump... should have sent a cushion!

 

LOL...

[surreyguy]

Anyone know ROUGHLY how much it would cost an employer to defend a case at tribunal ?

 

Say it went to a 3/4 day hearing and they had a solicitor defending them.....how much do you reckon?

 

The thought of them having to shell out big money on legal fees after the way my girlfriends been treated by them is shockingly satifying lol

[Bigredbus]

It all depends on who they request to defend the case...

 

Solicitor or barrister...

 

But certainly nothing less than 3K to 4K...

[elpulpo]

What size is the company she worked for? Does it have an HR Dept?

[surreyguy]

What size is the company she worked for? Does it have an HR Dept?

 

 

Hi Elpulpo.

 

The company has 2 branches . The one girlfriend worked in employed around 72 employee's . The other branch would have maybe 60 employee's so i would class that as relatively large ?

 

Dont know if you could class them as having an HR dept though.....im not too clued up on what that term actually covers (sorry). They have ....

 

1 general Manager

1 production Manager

1 Personnel Manager

1 drug and alcohol officer (who has NEVER approached girlfriend about her "positive" test result .)

 

 

Sorry , i realise i seem a bit "dim" lol

[surreyguy]

It all depends on who they request to defend the case...

 

Solicitor or barrister...

 

But certainly nothing less than 3K to 4K...

 

 

BigRedBus .

 

Now that answer has SHOCKED us both !!!!

 

We assumed that legal cover for the employer to defend a case "could" run to around 15 k (this is what we read on another site) .

 

Im actually a little disappointed now.........3/4k is NOTHING to this company (we wish it WERE 15k , that would STING! LOL)

 

 

tHANKS GUYS

[elpulpo]

Depends on the complexity of the case. Discrimination cases that may run into a few days could cost a lot more. It depends on who they instruct also.

I'd imagine if your case went to ET, it wouldn't last more than a day. Possibly 2 if many witnesses were called.

[mariefab]

I think that whether or not it was a random drug test is a bit of a red herring. I wouldn't focus on it as it distracts one from the real argument.

Your girlfriend isn't a drug user, therefore she should have had nothing to fear from a drug test random or otherwise.

 

Her case is that she was unfairly dismissed on the evidence of a test was known by her employers to have been incorrectly conducted.

(Bear with me while I go copy & paste crazy.)

Also , on the day of the test , my girlfriend was provided with a "schedule of procedure for testing" which basically is a procedure the testing agent has to follow during testing.....there is a section in this which states QUOTE " WHILST CONDUCTING THE TESTING PROCEDURE ON A DONOR , THE SAMPLE OF URINE PROVIDED MUST REMAIN WITHIN CLEAR SIGHT OF THE DONOR . THE COLLECTION AGENT SHOULD NEVER PLACE THE SAMPLE IN ANY POSITION OF WHICH THE DONOR DOES NOT HAVE FULL VIEW.

 

The testing procedure also CLEARLY states ;

 

Quote ; "WHILST ANY TESTING AGENT IS PERFORMING ANY TESTING PROCEDURE ON A DONOR , THE TESTING AGENT MUST REMAIN INSIDE THE TESTING ARENA (or any area being used as such) . STRICTLY UNDER NO CIRCUMSTANCES SHOULD THE TESTING AGENT LEAVE THE AREA OF TESTING UNTIL THE PROCEDURE HAS BEEN COMPLETED AND THE DONOR HAS (firstly) LEFT THE ROOM.

 

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.

 

 

Well , surely this procedure was broken owing to the fact that my girlfriend thinks( she is 99% sure) that when the collection agent went outside the room he had it in his hand (she had ONLY just handed it to him when he got called away).

 

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!

 

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.

 

What, if any, reasons have her employers given for refusing a re-test?

　

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

Was this a simple repeat of the original process or a more sophisticated test?

FYI ibuprofen will give a false positive for cannabis according to these guys (and they should know).

 

http://www.ukcia.org/culture/****test.php

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!

 

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.

What does it say in the Company's drug policy documentation about the consequences of testing positive for drugs? They can't have it both ways.

 

If they would offer counselling, support and job retention to an admitted drug user how can they justify dismissing your girlfriend because of a (dodgy) positive test.

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!!!!!

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......)

You'd think that the admission that they left the room would render the test result void and therefore inadmissable as evidence. Whether or not the Company that was paid to carry out the drug test admit to further breaches of their own procedures is surely irrelevant at that point.

 

How can the Company hold a reasonable belief in her guilt when, other than your girlfriend's declaration of her innocence, the evidence they had to base their decision on was a negative drug test from her GP and an admitted flawed positive result from their chosen testing Company.

 

So, her employers are confident that they have nothing to fear from a tribunal and will fight it all the way.

Sorry to be flippant, but are they on something?

 

 

[mariefab]

Oops! Sorry, I didn't notice that the link had a rude word in it.

 

If you google, ' taking the p***- drug testing at work ' that should find it.

[elpulpo]

I think that whether or not it was a random drug test is a bit of a red herring. I wouldn't focus on it as it distracts one from the real argument.

Your girlfriend isn't a drug user, therefore she should have had nothing to fear from a drug test random or otherwise.

 

 

It's certainly not the principal argument, Mariefab, which is exactly that which you set out, that there were clearly grave procedural errors that the employer conceded but refused to address -

but I do feel that stating that a test was random and then subsequently stating it was because they felt they had cause to do so is an important secondary issue.

It goes against good practice to mislead someone as to the purpose of the test.

Admittedly though, it could be misconstrued that therefore the applicant was concerned at the prospect of being tested.

[surreyguy]

Mariefab.....you ARE FAB !!!

 

That post was excellent , thank you , that must have taken up a lot of your time so be aware how much it is appreciated.

 

To answer your questions....

 

The company refused a re-test simply on the basis that the collection agent is CONFIDENT that nothing happened to hinder the sample whilst he was out of the room . The employer has simply choosen to take his word on this fact ! There are no witnesses to say what happened whilst he was out of the room.

 

My girlfriend begged to be allowed to give another sample , she offered to fund the cost of the re-test herself and she offered to allow a (female) member of MANAGEMENT to come right inside the toilet cubicle with her whilst she gave the sample!

 

Both requests were refused because of the collection agents insistence that the sample hadnt been hindered. We think he was SO insistant because he was bound to have KNOWN that this was going to get him a rollicking from his own employer.........so he covered his own back.

 

The companies alcohol and drugs policy is confusing , it states that a positive urine sample will lead to summary dismissal but then it goes on to state that any employee who considers themselves to have a drug/alcohol dependence can approach the alcohol and drug office and request help for the addiction . It states that whilst such help is being received by the employee , the employee will be considered to be absent on SICK LEAVE and that upon production of a NEGATIVE sample for testing , the employee will return to their previous position within the company having suffered no detriment because of their previous addiction.

 

It then goes on to say that the company are only concerned with ONGOING drug/alcohol problems which will be dealt with under the A+D policies , the company is not interested in "random" situations where drug/alocohol are abused only for social pleasure , instances such as this will be dealt with under the companies usual disciplinary procedure.

 

They have covered their backs in the wording of their policy though havnt they ???? Addiction you get to keep your job.........go out on a weekend and drop some recreational drugs....test positive on a monday and your fired!!!

[mariefab]

I fail to see how the employer could have any confidence in the assurances of a collection agent who freely admits that he had already breached the testing procedure by leaving the room.

 

Once he admitted the breach, a re-test should have automatically been done for that reason alone. I can't think of any justification for refusing a re-test in the circumstances. Especially as, within half an hour of the test, the donor is pleading their innocence and begging for a re-test with a manager present.

 

There are 2 possible scenarios here:

1. Agent leaves the room with your girlfriend's sample, in which case, contrary to the testing procedures, the sample was out of the donor's sight and therefore test is void.

2. Agent leaves the room without your girlfriend's sample, in which case he cannot possibly know what may have happened to any samples in his absence and again the test is void.

 

Her employer's stance of, 'Well yes, he admitted breaching the testing procedures but he was still pretty confident in the result. So we decided to just take his word for it instead of doing a re-test,' is nonsense.

[elpulpo]

Even without there being a breach of procedure, one would have thought it prudent to do a second test before sanctioning dismissal, given the gravity of the accusation and the employee's particularly long service.

It seems to me that the employer was well aware of the likelihood of there having been a mixup, but was more concerned by the potential ignominy of being proved wrong than ensuring the fair treatment of the employee.

[mariefab]

It seems to me that the employer was well aware of the likelihood of there having been a mixup,

 

Indeed, depending on how well known it was that the other employee was a recreational drug user, (and bearing in mind that one can test positive for cannabis months after use) perhaps the Company should have been alerted by the fact that the other employee tested negative.

Hmmm! Was this other employee also selected 'randomly'?

 

If you haven't already done so, it might be an idea to get the name (and address) of the collecting agent who carried out the test. You may want him as a witness at the Tribunal.

[surreyguy]

It seems to me that the employer was well aware of the likelihood of there having been a mixup,

 

Indeed, depending on how well known it was that the other employee was a recreational drug user, (and bearing in mind that one can test positive for cannabis months after use) perhaps the Company should have been alerted by the fact that the other employee tested negative.

Hmmm! Was this other employee also selected 'randomly'?

 

If you haven't already done so, it might be an idea to get the name (and address) of the collecting agent who carried out the test. You may want him as a witness at the Tribunal.

 

 

 

Mariefab , your good at this caper...you wana come represent my girlfriend ??? lol.

 

On the above suggestion made by you though , according to my girlfriend , when she got upset during the disciplinary meeting and mentioned that she would take it to tribunal , the manager holding the meeting told her that if it DID go to tribunal THEY would call the testing agent to be a witness for THEM to give evidence that he DID NOT hinder the test results by leaving the room.....

[honeybee13]

Would that be perjury?

 

As someone said earlier, the posturing about an ET seems to be bluster on their part. The best forum of defence is attack it seems, for them.

 

HB

[surreyguy]

Does anyone know if its at all possible to amend your ET1 after its been sent to the tribunal office and after the ex employer has received it ?

 

In the days soon after all this happened , we wernt really in a "good place" and although we have put EVERYTHING onto the ET1 upon readin over it now , it could have been a little bit clearer.

 

Would we be allowed to change/re-word it now ?

[mariefab]

Unless you feel that your ET1 is completely illegible, or you have left out something that you'll wish to use at the hearing, I wouldn't worry about it. (I know that the Tribunal doesn't bat an eye when they receive a hysterical rant.)

 

However, if you do wish to make any amendments/additions you could phone the tribunal service and ask them how to go about it.

[Ell-enn]

They obviously are in breach of the chain of custody by leaving the testing area... and despite their refusal to accept any responsibility in this case, I would nevertheless send a complaint... mentioning their negligence...

 

 

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.