Stansted Airport bus driver unfairly dismissed after breath test fail

An employment judge said there would have been a 75 per cent chance that Jacqueline Davidson would have been fairly dismissed in any event.

However, National Express “unreasonably failed to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures 2015”.

A basic award of £1,016.82 and a compensatory award amounting to £2,664.70 has been awarded to Ms Davidson.

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 on the morning of June 26, 2021.

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 Listerine she had gargled with to take away the taste of antibiotics she had been taking to treat a kidney infection.

National Express requires all drivers to undertake a breathalyser test before they are permitted to start work each day which must come back with a result below 8 micrograms 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 to 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 being referred to the disciplinary procedure.

National Express requires all drivers to undertake a breathalyser test before they are permitted to start work each day (Image: National Express)

On the morning of 26 June 2021, the claimant 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 13 mcg per 100ml.

The claimant took a second test at 4.10am where the test gave a result of 10mcg per 100ml.

Mr Fisher then allowed the claimant to take a third test at 4.25am, which gave a reading of 8mcg per 100ml.

Mr Fisher had claimed that Ms Davidson told him that she had had three or four drinks the night before and had had some vodka and a mixer.

Mr Fisher also stated the claimant told him that she had washed her hair, sanitised her hands and used Listerine before leaving home.

In evidence the claimant confirmed that washing her hair is part of her usual routine and that she regularly used Listerine at home, usually two hours before attending work.

Mr Fisher said he told the claimant that if they could affect the test, this would have dissipated within five to 10 minutes, which is why the company allows a longer period between re-tests.

As part of the investigation, the 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. The claimant recorded a score of 44mcg/100ml.

Both retested after 10-minutes and the score was recorded as 0mcg/100ml.

A disciplinary hearing found the claimant’s conduct amounted to gross misconduct and decided to summarily dismiss her.

The claimant was allowed to appeal.

Her appeal was based on that she had not drunk alcohol the night before the failure, 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.

Jacqueline Davidson was a Stansted Airport bus driver (Image: N/A)

However, employment judge Illing has said the appeal hearing chaired by Wesley Tierney, operations development manager was flawed after it did not address her points of appeal.

The judge 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 per cent chance that had a full and fair procedure been followed, she would have been dismissed in any event.”

A spokesman 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.”