Unable to start work, due to false-positive drug test from prescription medication

i_vladimirov

TL;DR: Drug screening laboratory cannot complete verification (over 2 months) of a *false positive* result, from an oral fluid test, caused by prescription medication, because, allegedly they did not follow the correct protocol. They should have done an MRO (Medical Review Officer) review, as is legally required, but they actually, just returned raw data (just re-testing in a lab environment) and thus returning a confirmation of the initial swab test

I disputed the result, stating that they did not take into account, the fact that I take medication, and requested a review. After providing additional medical and personal info (should have been requested by the MRO via phone call before that), they have failed to conclude anything in over two months, basically ghosting me and the whole situation.

Long form:

Greetings!In the beginning of march, I was due to start work on a self employed basis for a delivery company. As part of the pre-employment clearance I had to conduct an oral fluid swab test for illicit substances.

• Prior to doing the test, I gave full disclosure to the operative, that I have a diagnosed disability for which I take prescription medication. I also explained that the test will probably flag up, due to the medication. (The medication does not impede my ability to perform normal tasks and work). 
• I was advised to carry on as usual. The test came back positive and the operative stated, that in order to get cleared, a second sample must be sent to a laboratory to verify that the positive is caused by the medication. 
• We followed the procedure, I wrote down on a protocol the medication, dosage, intake frequency. Signed it, sealed it and it was sent off. I was given a 10 work day timeframe for the result , no other instructions.

(At the time I didn't know that the correct procedure isn't going to be followed from there on, I only found out recently, upon personal investigation)

• 10 work days later, I receive notification from one of the people working for my future employer, that the test came back positive for the same substance as the initial one (Amphetamines). 
• I immediately objected, stating that they apparently did not take into account my medication and personal circumstances, and requested a review/explanation. I was then asked to provide proof of my diagnosis and prescriptions under my name. 
• I provided them immediately. After that, there was no communication from them for over a month and a half. I tried to call up the laboratory a month ago, to follow up and see why it's taking so long (the whole process shouldn't take more than a week). An administrator told me, that they cannot disclose any information with me, because the test was sent under my future employers name.

• Two weeks ago they appear out of the blue, and contact my future employer again via email. In the email, they apologise for the delay and state that it was due to : "migration of IT services" . They then ask for the details of my GP surgery, because an MRO must contact contact them and me in order to confirm that the positive was caused not by illicit drugs, but by my medication. No answer since then.

(If I was to be denied employment, because of the medication, it would have been done in the beginning, I don't think this is the case)

I was advised to contact ACAS and the EASS. I did both, even got through to Citizens advice, and was told I can seek compensation on the grounds of Discrimination due to Disability by a Service provider.

Additionally, I was doing some research and found out allegedly, how the laboratory has not followed the correct protocol exactly.

When the second swab was sent, I was supposed to provide my GPs contacts when sending the sample in order for the MRO to conduct his process as intended by law. I was not asked anything of the sort. I suspect, that initially they had no intention to do an MRO review, or forgot to do it, I don't know.

Upon getting a second non-positive result, the MRO has an obligation to contact me for an interview. Has to attempt at least 3 times. Leaving 3 voicemails if he is not able to(this is to give me an opportunity to explain my case). He must also contact my GP to confirm that they prescribe the said medication. If all is confirmed, they have to declare the test negative and must notify me and my employer within 48 hours (if I recall correctly ).

I found a similar case in the US, where initially the lab only did a secondary test and did not employ an MRO review, and the same thing happened, and they were taken to court over the case, subsequently, the lab was found liable for professional negligence for not providing duty of care, mishandling of samples.

Conclusion:

I am not sure which route to take on from here. I am determined to seek a compensation for financial losses, stress, emotional distress.

Should I seek a resolution on the grounds of Discrimination, or Professional negligence, Medical negligence, Misconduct? There is not much information on the matter in the UK, and I cannot rely on cases from the US, as it's a whole different jurisdiction.

Undervalued

i_vladimirov said:

TL;DR: Drug screening laboratory cannot complete verification (over 2 months) of a *false positive* result, from an oral fluid test, caused by prescription medication, because, allegedly they did not follow the correct protocol. They should have done an MRO (Medical Review Officer) review, as is legally required, but they actually, just returned raw data (just re-testing in a lab environment) and thus returning a confirmation of the initial swab test

I disputed the result, stating that they did not take into account, the fact that I take medication, and requested a review. After providing additional medical and personal info (should have been requested by the MRO via phone call before that), they have failed to conclude anything in over two months, basically ghosting me and the whole situation.

Long form:

Greetings!In the beginning of march, I was due to start work on a self employed basis for a delivery company. As part of the pre-employment clearance I had to conduct an oral fluid swab test for illicit substances.

• Prior to doing the test, I gave full disclosure to the operative, that I have a diagnosed disability for which I take prescription medication. I also explained that the test will probably flag up, due to the medication. (The medication does not impede my ability to perform normal tasks and work). 
• I was advised to carry on as usual. The test came back positive and the operative stated, that in order to get cleared, a second sample must be sent to a laboratory to verify that the positive is caused by the medication. 
• We followed the procedure, I wrote down on a protocol the medication, dosage, intake frequency. Signed it, sealed it and it was sent off. I was given a 10 work day timeframe for the result , no other instructions.

(At the time I didn't know that the correct procedure isn't going to be followed from there on, I only found out recently, upon personal investigation)

• 10 work days later, I receive notification from one of the people working for my future employer, that the test came back positive for the same substance as the initial one (Amphetamines). 
• I immediately objected, stating that they apparently did not take into account my medication and personal circumstances, and requested a review/explanation. I was then asked to provide proof of my diagnosis and prescriptions under my name. 
• I provided them immediately. After that, there was no communication from them for over a month and a half. I tried to call up the laboratory a month ago, to follow up and see why it's taking so long (the whole process shouldn't take more than a week). An administrator told me, that they cannot disclose any information with me, because the test was sent under my future employers name.

• Two weeks ago they appear out of the blue, and contact my future employer again via email. In the email, they apologise for the delay and state that it was due to : "migration of IT services" . They then ask for the details of my GP surgery, because an MRO must contact contact them and me in order to confirm that the positive was caused not by illicit drugs, but by my medication. No answer since then.

(If I was to be denied employment, because of the medication, it would have been done in the beginning, I don't think this is the case)

I was advised to contact ACAS and the EASS. I did both, even got through to Citizens advice, and was told I can seek compensation on the grounds of Discrimination due to Disability by a Service provider.

Additionally, I was doing some research and found out allegedly, how the laboratory has not followed the correct protocol exactly.

When the second swab was sent, I was supposed to provide my GPs contacts when sending the sample in order for the MRO to conduct his process as intended by law. I was not asked anything of the sort. I suspect, that initially they had no intention to do an MRO review, or forgot to do it, I don't know.

Upon getting a second non-positive result, the MRO has an obligation to contact me for an interview. Has to attempt at least 3 times. Leaving 3 voicemails if he is not able to(this is to give me an opportunity to explain my case). He must also contact my GP to confirm that they prescribe the said medication. If all is confirmed, they have to declare the test negative and must notify me and my employer within 48 hours (if I recall correctly ).

I found a similar case in the US, where initially the lab only did a secondary test and did not employ an MRO review, and the same thing happened, and they were taken to court over the case, subsequently, the lab was found liable for professional negligence for not providing duty of care, mishandling of samples.

Conclusion:

I am not sure which route to take on from here. I am determined to seek a compensation for financial losses, stress, emotional distress.

Should I seek a resolution on the grounds of Discrimination, or Professional negligence, Medical negligence, Misconduct? There is not much information on the matter in the UK, and I cannot rely on cases from the US, as it's a whole different jurisdiction.

Unless I am missing something, you don't say what disability you have?

Also, assuming your condition counts as a disability (for employment law purposes) were your potential "employers" made formally aware of the disability or was it sufficiently obvious that they should reasonably have been aware?

Also, your exact employment status is not clear. You say "I was due to start work on a self employed basis for a delivery company". If you are self employed then they are not your employer but your client and most of the "advice" you have received is irrelevant, It might be that regardless of what it is called you should actually be an employee, with the rights and obligations that brings, but you would need proper legal advice on that point. If you are working for a large reputable organisation on a self employed basis they will have had their contracts draw up very carefully by lawyers to try and ensure you are not an employee. If it is a smaller (or "cowboy") outfit they may have got it wrong. 

Be aware that sometimes HMRC will treat a person a an employee for tax purposes but an employment tribunal will take the opposite view - or vica versa. Neither is binding on the other!

i_vladimirov

Unless I am missing something, you don't say what disability you have?
-ADHD

Also, assuming your condition counts as a disability (for employment law purposes) were your potential "employers" made formally aware of the disability or was it sufficiently obvious that they should reasonably have been aware?
-Yes, they have been made aware. They also have a copy of my diagnosis

. You say "I was due to start work on a self employed basisfor a delivery company". If you are self employed then they are not your employer but your client and most of the "advice" you have received is irrelevant, It might be that regardless of what it is called you should actually be an employee, with the rights and obligations that brings, but you would need proper legal advice on that point.
-I have consulted ACAS and EASS on the matter, and both stated, that for the purposes of my case, I should be treated the same way as an applicant employee. (I acknowledge the fact that they don't offer legal advice, as say a solicitor).
I also spoke to a legal advisor from Citizens advice, relating to discrimination, and he stated that there is a case agains both the laboratory and "employer"

Undervalued

i_vladimirov said:

-I have consulted ACAS and EASS on the matter, and both stated, that for the purposes of my case, I should be treated the same way as an applicant employee. (I acknowledge the fact that they don't offer legal advice, as say a solicitor).
I also spoke to a legal advisor from Citizens advice, relating to discrimination, and he stated that there is a case agains both the laboratory and "employer"

Yes, as I suggested, that might be the case but you would need proper legal advice on that point. It is complex and very likely to be strongly contested.

Either way you might still have a case against the laboratory. You would very likely need an expert opinion to confirm that they had not followed correct procedures (if that is indeed the case).

Does your house insurance provide any legal expenses cover? Although, even if it does, the self employed / business aspects of this may be excluded. I assume you are not a member of a trade union?

i_vladimirov

Undervalued said:

Either way you might still have a case against the laboratory. You would very likely need an expert opinion to confirm that they had not followed correct procedures (if that is indeed the case).

I also think, that my strongest case is against the laboratory. I have spent a considerable amount of time, researching the code of conduct, Government guidelines on how laboratories should perform those services and under what timelines, they should be performed. And compared them to my personal case. I don't know what kind of solicitor to look for to help me out. I am also not sure, if I should pursue compensation for tort negligence, discrimination, consumer rights... But I need the right legal representative to help me with putting this forward.

Undervalued said:

Does your house insurance provide any legal expenses cover? Although, even if it does, the self employed / business aspects of this may be excluded. I assume you are not a member of a trade union?

Sadly I neither have this coverage, neither am a member of a trade union

i_vladimirov

If anyone has an idea, to what kind of solicitor I should try to contact, please let me know. Also, is it possible to claim for more than one alleged wrongdoing ?

lincroft1710

i_vladimirov said:

If anyone has an idea, to what kind of solicitor I should try to contact, please let me know. Also, is it possible to claim for more than one alleged wrongdoing ?

Preferably one who won't charge you an arm and a leg, which will be difficult!!


You can claim for as many alleged wrongdoings as you want, getting any form of judgement in your favour for any of them is another matter! There is no legal obligation for an employer to expedite a would be employee's application - the Civil Service are renowned for telling candidates they have passed an interview, but months later the candidate has still not been offered a position. Suing a would be employer will guarantee you no job offer, and possibly if word gets around, many doors will be closed to you.


In reality you can only sue for quantifiable losses. What are these, basically only loss of possible wages to date. Regarding the laboratory were you actually their client, or was the possible future employer their client?


You do need proper legal advice if you still want to bring any form of action, but it won't come cheap and often you can't claim legal costs even if you are successful