Saturday night will see members of the Rail, Maritime and Transport union strike over the dismissal of a driver for failing two alcohol breath tests.
The Union’s hold that the tests used by London Underground are outdated and do not take into account those who may have diabetes. The transport authority said it had explored in detail the suggestion that diabetes could affect the breathalyser result, but concluded that the type of test it used was not affected by acetone, which is produced in the bloodstream of people with the condition.
Nigel Holness, the operations director on the Jubilee, Northern and Piccadilly lines has said "you wouldn't let someone who had been drinking alcohol drive your family in a car, and we don't let people who have been drinking alcohol drive people's families in Tube trains.”
London Underground confirms that strike action will not persuade them to reconsider their decision on the dismissal of this individual.
Failing a drug test (provided you have consented to having it taken), is grounds for summary dismissal for gross misconduct. Being dismissed for gross misconduct excuses the employer from paying notice or redundancy pay.
While alcohol dependency is not considered a disability for the purposes of Employment Law, if you are taking medication for an underlying problem, in this case diabetes, this may fall within the disability discrimination legislation.
An employee can challenge a dismissal on the grounds of failing a drug or alcohol test through the employer's internal grievance procedure. If the employer rejects the appeal, the employee could then take the case to an Employment Tribunal.
If you have dismissed an employee for failing a drugs test, or have been dismissed yourself, contact a member of our Employment Team on 01279 755777.