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Facing potential dismissal can be a confusing and stressful time for employees. If you’ve been dismissed from your job or think that you may be dismissed from your job because you’ve failed a drugs test then you should take action to try and keep your job (if possible) or protect your position if you have already been dismissed. This article will take a look at what you should do if you’re facing (or have already faced) dismissal because you’ve failed a drugs test (including making a claim for unfair dismissal). We’ll therefore take a look at:

  1. Can you be dismissed for failing a drugs test?
  2. Should you be dismissed for failing your drugs test?
  3. What you should do if you’re disciplined for failing a drugs test
  4. What you should do if you’re dismissed for failing a drugs test

Can you be dismissed for failing a drugs test?

The simple answer to this is “yes, it’s possible that you can be dismissed for failing a drugs test”. Failing a drugs test is a potentially fair reason for dismissal (under the heading of “misconduct” or potentially “capacity” if you can’t do your job properly because you’re under the influence of drugs). However, the more interesting question is whether you should be dismissed for failing a drugs test. We’ll have a look at this below.

Should you be dismissed for failing your drugs test?

The answer to this question depends on the facts of the matter. If your employer is seeking to dismiss you (or has dismissed you) because you’ve failed a drugs test then they must make a decision to dismiss that you that is both procedurally and substantively fair. For the decision to be procedurally fair your employer must (normally) carry out a thorough and fair investigation and disciplinary process and must not act arbitrarily or inconsistently in your case (i.e. you shouldn’t be dismissed if other employees haven’t been dismissed in similar circumstances). For the decision to be substantively fair your employer must have, on the facts available to them, a genuine and honest belief in your guilt based upon a fair and reasonably thorough investigation.

In particular, your employer should bear in mind the following things when making a decision whether to dismiss you or not:

  1. The nature of your duties – would the allegation of misconduct affect your ability to do your job?
  2. Your position at work – would the allegation of drug-taking damage trust and confidence between you and your employer?
  3. The nature of the incident – is this a particularly serious incident? If not, does it really justify dismissal?
  4. Your past record at work – have you got a long period of unblemished service? If so, would it be reasonable to dismiss you for a first-time offence?
  5. The effect on your employer and its customers

Your employer must bear the above factors in mind in deciding whether there are reasonable grounds to dismiss you. If they fail to do so then you may have a claim for unfair dismissal.

What should you do if you’re disciplined for failing a drugs test?

If you’re invited to a disciplinary because of allegations of drug-taking then you should:

  1. Let your employer know whether you’re willing to attend the disciplinary hearing
  2. Find out whether you can get a work colleague or a Trade Union official to accompany you
  3. Prepare properly for your hearing. Get your evidence (witness statements and documents) together and prepare appropriate questions
  4. Potentially submit a grievance if you think the disciplinary is unjustified
  5. Attend the disciplinary hearing. Take notes if you can.

Download a copy of a grievance letter template example here.

What you should do if you’re dismissed for failing a drugs test

If you’re dismissed for failing a drugs test then you should:

  1. Appeal against your dismissal (use this dismissal appeal letter, if you wish)
  2. Speak to a specialist employment lawyer or Trade Union official (if you are a member)
  3. Consider making a claim for unfair dismissal (click here to find out how to make a claim for unfair dismissal to the Employment Tribunal)

Redmans Solicitors are London employment lawyers who offer advice on employment law. They are specialist unfair dismissal solicitors and offer compromise agreement advice.

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Redmans Solicitors are a law firm based in Richmond, London. They are specialist employment lawyers and represent both employers and employees in the Employment Tribunal

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