Stansted Airport National Express bus driver wins unfair dismissal claim after failing workplace breathalyser test

A Stansted Airport bus driver who failed a workplace breathalyser test has won a claim for unfair dismissal.

The hearing determined Jacqueline Davidson’s employer, National Express, did not follow the disciplinary process properly and “unreasonably failed to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures 2015”.

However, an employment judge said there would have been a 75% chance that Ms Davidson would have been fairly dismissed in any event.

A basic award of £1,016.82 and a compensatory award amounting to £2,664.70 have been awarded to the complainant.

Ms Davidson – described as a “highly qualified” professional driver who was licensed to operate vehicles at the airport – was said to have been drinking the night before she failed the test.

However, she denied telling her supervising manager, Michael Fisher, that she had had a drink the night before and argued the reason for the failed tests was the Listerine mouthwash she had gargled with to remove the taste of antibiotics she was taking for a kidney infection.

National Express requires all drivers to undertake a breathalyser test before they are permitted to start work each day, They must achieve a result of fewer than 8 micrograms (mcg) of alcohol in 100 millilitres of breath. This is significantly below the national drink driving limit of 35mcg/100m but National Express asserts that this low level is required to meet its obligations for the health and safety of passengers.

National Express policy states that if an employee fails the breath test at the start of their shift, a fail at a second test will result in the employee being suspended and referred to the disciplinary procedure.

On the morning of 26 June 2021, Ms Davidson, who had five years of service with an exemplary record, arrived at work and took the daily breath test. The first result from the wall-mounted “Alcolock” machine at 3.50am was 13mcg per 100ml. She took a second test at 4.10am, when the test gave a result of 10mcg per 100ml. Mr Fisher allowed her to take a third test at 4.25am, which gave a reading of 8mcg per 100ml.

Mr Fisher claimed Ms Davidson told him she had had three or four drinks the night before and had had vodka and a mixer. She denied telling Mr Fisher that she had drunk only water.

Mr Fisher also said that she told him she had washed her hair, sanitised her hands and used Listerine before leaving home. In evidence, the claimant confirmed that washing her hair was part of her usual routine and that she regularly used Listerine at home, usually two hours before work.

Mr Fisher said he told her that if they could affect the test, this would have dissipated within five to 10 minutes, which is why the company allowed a longer period between retests.

As part of the investigation, duty manager Peter Hales offered to test the effect of Listerine and the hand gel in relation to a breath test. He used the mouthwash and blew a score of 46mcg/100ml. Ms Davidson recorded a score of 44mcg/100ml. Both were retested after 10 minutes and the score was recorded as 0mcg/100ml.

A disciplinary hearing found Ms Davidson’s conduct amounted to gross misconduct and decided to summarily dismiss her. She was allowed to appeal.

Her appeal argued that she had not drunk alcohol the night before the failure, that she had used Listerine as she got out of the car, she had not failed a test before, she would have passed a blood test, that everybody is different and that she had a kidney infection and was taking antibiotics.

The tribunal judge said the appeal hearing was flawed as it did not address her points of appeal.

He added: “I have found that the claimant was unfairly dismissed for procedural reasons as at the date of the appeal. The appeal was unfair because the appeal officer did not keep an open mind and he did not address the claimant’s points of appeal.

“I am satisfied that had the appeal manager addressed his mind, openly, to the points raised by the claimant, there was a small possibility that he would have allowed the appeal.

“I have found that the claimant did consume alcohol leading to the positive tests and I have found that there were no exceptional circumstances to take into account, I therefore find that the likely conclusion of a fair procedure would still have been the claimant’s dismissal, but this is not a certainty.

“Therefore, I conclude that there was a 75% chance that had a full and fair procedure been followed, she would have been dismissed in any event.”

A spokesperson for National Express said: “National Express takes the safety of its passengers, colleagues and other road users as a matter of the highest priority and we routinely check that our drivers meet our medical standards required to drive.

“We welcome the judgment, which makes clear that the claimant had given three positive breath test results for alcohol, having consumed alcohol during the evening before attending work early the next morning, and that this amounted to gross misconduct.

“The tribunal specifically upheld the legitimacy of our drug and alcohol policy, and confirms the requirements under that policy as being reasonable.”