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

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For more information on:

  • Will an employer be subject to any restrictions in relation to data protection when conducting drug testing?
  • Can an employer dismiss an employee straight away if they fail a drugs test?
  • What happens if an employer fails to adhere to the statutory disciplinary procedures?
  • What else should an employer take into consideration?
  • On what grounds may an employee be able to defend a positive drugs test?
  • What should an employer do in this situation?