Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. Just before I provide my advice, I can only advise on UK law, is that ok? Also what specific questions do you have about this so I can tailor my answer more appropriately.
Hi Ben, my question is how can somebody justify a testing machine that hasent been calibrated since May 2012? and after the machine registered a clear 0, the machine then, according to ships doctor made a count out registering 0.552, when the Doctor took the test at my request, the exact same thing happened to her 0 followed by 0.552? I know you are UK law, thats clear, in the cruise industry, you are allowed 0.8, so i was under anyway, but how or why should this even be considered on a machine not calibrated since May 2012>>
The answer to this would very much depend on what is seen as a reasonable calibration frequency of such machines and unfortunately that is not really an employment law question. If there are specific regulations about how often a breathalyser should be calibrated then these should be followed but that is certainly not an employment issue and I suspect the only rules in relation to calibrating would be with the ones used by the police where someone may get convicted based on its results. However, in employment law the law is certainly not as strict, in fact to justify formal action, including dismissal, an employer does not even have to prove that someone was guilty, as long as they had conducted a reasonable investigation, held a genuine belief they were guilty and can show it was a reasonable decision to be taken in the circumstances. In criminal law the rules would be much more stringent and difficult to follow.
Another relevant consideration is whether the machine had an operational manual which stated how often it should have been calibrated.
So an employer is able to use this machine if they really wanted to and can even take a formal decision based on its results. It does not mean it is fair but you cannot stop them from doing so. However, if there is evidence that the information they had used to come to their decision was incorrect or likely to have been, then you can use that as a defence and a reason to take further action. Employment law is very much reactive, not proactive, meaning that there is often little that can be done to prevent a situation from occurring, instead it offers you remedies to deal with the outcome. You can be proactive from an internal point of view, by discussing this issue with your employer, raising your concerns, even pursuing a formal complaint with them through their internal channels. But none of this guarantees they will rectify this issue or that they won't use this machine again in the future. But it does mean if you are reprimanded as a result of it and it can be shown that it was not working properly, you can challenge any decision taken against you.
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