Drug testing by employers in the workplace

Drug testing in the workplace

The issue of employees not being able to undertake the role which they are employed to do for reasons of drug use and dependency is an important issue and one which may employers wish to tackle head on.

Often it is felt that requiring employees to submit to random drug testing will decrease the use of recreational drug use outside work which in turn is thought to reduce the number of sick days of many employees.

Currently there are many companies which are offering specific ways of testing for drugs in the workplace. The marketing literature for these companies is becoming extremely prevalent in the UK workplace. However, employers should be careful to consider their legal rights before implementing any of these tests.

Is drug testing in the workplace legal?

There is no legislation which deals specifically with the legalities of drug testing in the workplace in England and Wales. Consequently it is somewhat of a legal grey area meaning that employees should be careful when wishing to implement it.

Currently there is some confusion as to whether an employer can impose routine or random drug testing for employees who undertake non-safety critical roles.

The right for employers to subject employees to drug testing is an extremely limited right. This applies even in the situation where the right is provided in the employment contract signed by the employee. Therefore employers should be careful when trying to impose this on their staff.

If an employer imposes drug testing on employees will there be any legal issues to consider?

If an employer makes an unreasonable request for an employee to take a drugs test then this may result in a breach of the implied duty of mutual trust and confidence. Accordingly this could then lead to that employee bringing a successful claim for unfair constructive dismissal.

Furthermore if an employer obtains samples without consent this could constitute the criminal offence of assault of battery.

What must an employer then do to avoid a legal challenge?

If an employer wishes to impose some form of drug testing on any of their employees they will need to show that there are factors indicating that the particular employee is using or affected by drugs.

What must the employer do if there is no evidence indicating this?

If there is no evidence indicating this then the employer will be required to show that there are reasonable justifications in requiring that particular individual to submit to drug testing. If there are no reasonable grounds it is likely that the employee would be able to bring a claim against the employer.

What should an employer do if they wish to combat the potential of drugs affecting their workforce?

If an employer wishes to combat the potential of drugs affecting their workforce it is advisable that they put in place a drugs and alcohol policy which clearly outlines all aims and purposes of the policy. This should then be distributed to all members of staff to ensure that they are fully aware of the policy.

What issues should be dealt with in the policy?

The policy should deal with the following issues:

• An explanation of who is covered by the policy – detailing whether a particular group is subject to tighter restrictions, this may include those who carry out safety-critical work
• An explanation of the rules and procedures around alcohol and drugs use – this should include definitions of what constitutes misuse and what disciplinary action may be taken
• An explanation of any testing process which may be imposed – this should include an explanation of why the tests are carried out, who will administer them and the consequences of a positive result

Will an employer be subject to any restrictions in relation to data protection when conducting drug testing?

Any information about an employee’s health is regarded as sensitive personal data in accordance with the Data Protection Act 1998.

Accordingly employers must ensure that they adhere to the various codes of practice produced by the Information Commissioner when carrying out testing to ensure that they are not in breach of the Data Protection Act.

Can an employer dismiss an employee straight away if they fail a drugs test?

Before an employer makes a decision on whether to dismiss an employee they must ensure that all statutory disciplinary procedures are adhered to. Furthermore they must ensure that any of their own disciplinary procedures are also adhered to.

What happens if an employer fails to adhere to the statutory disciplinary procedures?

If an employer fails to adhere to the statutory disciplinary procedures this will result in the dismissal being automatically unfair and will open them up to legal challenge from the employee.

What else should an employer take into consideration?

In this situation an employer must be careful not to jump to conclusions and immediately pre-judge a situation. Therefore an employer should not immediately dismiss an employee without giving them opportunity to state their case.

On what grounds may an employee be able to defend a positive drugs test?

An employee may be able to defend a positive drugs test if there is a claim that the reason behind the test is that they are suffering from an addiction.

What should an employer do in this situation?

If this scenario occurs it would be good practice for an employer to treat the employee as if they are suffering from an illness. For example the employer should take reasonable steps to determine the potential chances of recovery by that employee. This should be done by seeking medical evidence. An employer should then allow a reasonable time for recovery and consider whether any assisting treatment such as counseling would be appropriate.

An employer should also consider the Disability Discrimination Act 1995 as although drug and alcohol addiction are specifically excluded from the definition of disability, depression as a result of dependency is not.