is this unfair?

[elpulpo]

18 years.

 

Surely that alone holds some weight.

That holds a lot of weight.

Any previous, unexpired disciplinary issues?

 

I think what you'll be looking to do at an ET is display that the employer failed to fully investigate this matter, and therefore their decision to dismiss was not reasonable. Given the seriousness of the allegation, they had a responsibility to be extremely thorough in how they investigated, yet seemingly they were guilty of a kneejerk reaction.

So, the fact that they did not allow a second sample to be given, the significant inconsistancies of procedure at the first test, their refusal to consider the findings of a second test performed by her GP a few days later, etc.

It might be worth going to see the GP again, and seeing if you can get an explanation of how the testing works, to see if it is feasable that she could have tested positive at the first test, but negative at the second.

It might be that it will require the testimony of an expert witness to successfully win this one. I don't know if that's feasable.

 

Was your girlfriend allowed a representative to accompany her to the disciplinary hearing? Do you have the minutes of that meeting?

[surreyguy]

Wow!!! you are all great guys so thanks.

 

from memory , you asked about the investigation process......the company did not conduct an investigation until AFTER they dismissed my girlfriend....i enquired as to why this was and they said that the drug test WAS the investigation ?

 

Girlfriend has worked there 18 years , totally excellent disciplinary history (no probs at all)

 

yes , i have all the meeting minutes , signed and checked , this is where it can be confirmed that the test was random (it actually has come out now that the test was a FOR CAUSE TEST THOUGH).

 

funnily enough , we have just drafted a letter of SUBJECT ACCESS REQUEST , so will be sending that tomorrow.

 

I feel that the company were trying to get rid of girlfriend , she has an ongoing dispute with the employee who "raised concerns"....

 

Will check back later

 

thanks again.

 

surreyguy

[elpulpo]

Perhaps testing of a hair sample is something to suggest to your GP. As I understand it, this displays use of substances over a much longer period.

[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?

 

 

Yes , we do have it in writing that they could have offered her "help" if she had/has a drug "problem"

[Bigredbus]

Wow!!! you are all great guys so thanks.

 

from memory , you asked about the investigation process......the company did not conduct an investigation until AFTER they dismissed my girlfriend....i enquired as to why this was and they said that the drug test WAS the investigation ?

 

Girlfriend has worked there 18 years , totally excellent disciplinary history (no probs at all)

 

yes , i have all the meeting minutes , signed and checked , this is where it can be confirmed that the test was random (it actually has come out now that the test was a FOR CAUSE TEST THOUGH).

 

funnily enough , we have just drafted a letter of SUBJECT ACCESS REQUEST , so will be sending that tomorrow.

 

I feel that the company were trying to get rid of girlfriend , she has an ongoing dispute with the employee who "raised concerns"....

 

Will check back later

 

thanks again.

 

surreyguy

 

If I may say, and therefore run ahead of the cart, they will have little grounds to stand on at the ET... maybe one leg... and a wooden one, as to speak...

 

The storyline is very interesting...

 

Ongoing and unresolved dispute with colleague... let's find a way of getting rid of her... somehow, discreetly... let's therefore run a random drug test, upon being told that she has not been herself recently. Technicians (the two of them) in charge of chain of custody strangely vanish... sample result positive... dismissed on gross misconduct...

 

Do the means justify the end?

Edited March 17, 2010 by Bigredbus
Typo...

[elpulpo]

Well, BRB, I'd say the ET will depend on the applicant successfully pulling apart the lack of investigation. I'd be wary of being complacent and presuming that the ET will automatically see the inadequacies.

 

After all, even if the applicant were, subsequent to dismissal, to prove beyond all reasonable doubt that the drug test was wrong, the ET will consider if, at the time of dismissal, was it reasonable for the employer to come to the decision it did. If the ET feels it was, it will still uphold the dismissal as fair.

The applicant needs to show that no reasonable employer, in the circumstances, would have come to that decision.

 

I think the fact that the employer offered to retain the applicant if they admitted to being guilty to the accusation is significant.

Why couldn't they have retained her anyway, regardless of whether she admitted anything, on the insistance that she receive drug counselling?

 

 

That offer, though unfair, does rather pour water on the conspiracy theory, I have to say. If there was an agenda to get rid, they wouldn't have made such an offer, shirley?

[Bigredbus]

The ET will, at some point, in seeking the truth in this case, look at the accuracy of the results of that test. I do remind you of the following...Drug testing samples should be collected in a tamper proof sealed container and placed under chain of custody for ensuring that the sample’s identity and integrity are guaranteed from the moment of collection to the reporting of the results from an independent laboratory. That chain of custody has been breached and the claimant holds written proof.

 

A second test has been carried out and returned negative (GP's test).

 

Clear policy in her workplace states that drug tests are conducted randomly. The element of 'random' is here easily challenge as the test has been alledgedly conducted upon a 'tip off'.

 

There is an ongoing and unresolved dispute between employees.

 

You are right in mentioning that there has been some level of support, but this has been offered after she has been dismissed (if I read correctly)...

 

- Was the employer reasonable in dismissing her?

- Have internal policies and guidelines followed in both the drug screening and disciplinary procedures?

Edited March 17, 2010 by Bigredbus
Spelling... Typo...

[elpulpo]

I agree entirely, BRB. My point is the the applicant needs to actively put these points across to the ET, not presume that the ET will look themselves.

My concern is that the 'Prima Facie' case of the respondant looks strong, only when one explores the background does one see the inconsistancies.

When I read the OP, my first reaction wasn't positive, only when the matter was fully set out did my impression change.

If the applicant goes into a one-day tribunal hearing, nervous and ill-prepared, the respondant may sweep over these facts.

 

Might be handy if we can see what was submitted on the ET1.

[Bigredbus]

I entirely agree with you 'elpulpo'...

 

The exercise is much more complicated before an ET, where points have to be clear and succintly put forward. However, I am confident that 'surreyguy' will be able to construct his pleading rationally and logically...

 

Having a look at the ET1 could be a good thing...

[jackieandwayne]

elpulpo I was just about to suggest this young lady goes to a private doctor, explains the problem and asks for the hair/nail and skin tests to be done - cost a bit, but very much worth it in this case. Because you are right, they can go back many weeks/months using these methods.

 

Good luck to your girlfriend surrey, don;t let her give in over this one! I should imagine it is causing shock horror and trauma right now and I'm suire she's letting her GP know how ill it is making her isn't she?

[surreyguy]

Thanks

[surreyguy]

sorry all , what i meant to say is thanks for all the help and support.

 

To the poster who mentioned visiting the Gp for hair / nail testing , yes this is something we had considered actually BUT girlfriends employer has said that no matter what test my girlfriend produces , they WONT be relying on the results !!!(cheeky buggers!)

 

Any way , im seriously considering going down this route anyway....just because the employer wont pay notice to the results soesnt mean the tribunal judge wont........

 

My girlfriend actually IS making herself ill with worry over this.....she isnt worried about the job (as such) , she isnt even worried about the money side of things ....... she just hates that people think that because the test says shes a drug user then thats what she must be!

Nothing could actually be further from the truth !

 

im determined im going to get her through this , i can see where the employer has went wrong and at the end of the day it costs me very little to represent her at tribunal but the employer will have to shell out for legal fees !!

[surreyguy]

Sorry guys , just abother few questions ;

 

1) does anyone know (for sure) whether or not we would have any sort of come back on the testing company/

 

could we lodge a complaint with them?

 

Would it harm her tribunal case if we complain?

 

 

Thanks

[Bigredbus]

You certainly could lodge a complaint with the laboratory who ran the test... after all they breached the chain of custody... from which may stem the error... and therefore the dismissal...

[elpulpo]

sorry all , what i meant to say is thanks for all the help and support.

 

To the poster who mentioned visiting the Gp for hair / nail testing , yes this is something we had considered actually BUT girlfriends employer has said that no matter what test my girlfriend produces , they WONT be relying on the results !!!(cheeky buggers!)

 

Any way , im seriously considering going down this route anyway....just because the employer wont pay notice to the results soesnt mean the tribunal judge wont........I'd say it's essential that you seek to substantiate that the test result was wrong. Even if this costs you some money. It's not just the dismissal that you're fighting here, more the potential damage to reputation and future employment prospects.

 

My girlfriend actually IS making herself ill with worry over this.....she isnt worried about the job (as such) , she isnt even worried about the money side of things ....... she just hates that people think that because the test says shes a drug user then thats what she must be!

Nothing could actually be further from the truth !

 

im determined im going to get her through this , i can see where the employer has went wrong and at the end of the day it costs me very little to represent her at tribunal but the employer will have to shell out for legal fees !!

See above

[elpulpo]

I don't know if there's a regulatory body for such companies.

I'd suggest that you seek as much information about drug testing as possible.

This is quite a 'technical' claim, as I see it. As I said, before, it might end up with 'expert' witnesses.

[kurvaface]

From what I understand of urine testing for drugs, a sample should be divided and securely stored so tests can be repeated. I would strongly suggest looking into what procedure(s) was(were) followed in this test and establish if it follows guidelines that ensure rigorous practice.

[surreyguy]

Yes kurvaface , you are correct there!

 

The sample when taken is split into two seperate containers. Half was tested on the day and half is stored at the lab for instances where the validity of a result is in question.....the employer has offered to allow my girlfriend to have the other portion of the sample re-tested (at a choice of two labs which they dictated to her) but our view on this is that we dont dispute that the sample is positive for drugs (because we know the other donor tested the same day takes recreational drugs) what we dispute is that the sample does NOT belong to my girlfriend!!!

 

The scenario we imagine is that the two samples somehow became mixed up when the collection agents were out of the room.

[honeybee13]

I can see what you mean, surreyguy. I'm no scientist, but from what I've read today, your girlfriend has a test result from her GP that was close enough to the original one to be relevant, and was negative. If the first samples got mixed up, I can see that you think testing the second one would be pointless.

 

It's been a long day, so if other caggers shoot me down in flames, I apologise.

 

My best, HB

[honeybee13]

Of course, it could be my inability to express myself in writing.

[elpulpo]

Find out if a DNA test can be done on the sample. That would sort it.

 

The thing that really concerns me about this thread is that we're on post #44, and no one has used the phrase "Taking the p*ss" yet. Very poor.

[honeybee13]

P**s poor in fact, Elpulpo. Sorry surreyguy, just trying to lighten things up a bit. I hope your girlfriend is feeling slightly better with all the support she's getting.

[elpulpo]

Wee need to give this guy all the help we can.

[surreyguy]

GUYS!!!!!!

 

Please dont take the **** out of the situation !!!

 

 

just kidding . I appreciate the support and so does my girlfriend

[surreyguy]

Honeybee , cant see any one shooting you down for your post , infact it makes a lot of sense.

 

Thanks for the input.

 

 

Surreyguy