According to a recent Home Office study – ‘Drug Misuse: Findings from the 2015/16 Crime Survey for England and Wales’ – around 8.4% of adults aged 16-59 (about 2.7 million people) took an illicit drug in 2015/16.
It is often felt that requiring employees to submit to random drug testing in the workplace will decrease recreational drug use outside work, which in turn will reduce the number of sick days taken by many employees. However, employers should be careful to consider employees’ legal rights before implementing any of these tests.
Employers have a duty under the Health and Safety at Work Act 1974 and other legislation, to ensure the health, safety and welfare at work of their employees. They could therefore face prosecution if they knowingly allow a worker to work under the influence of illegal drugs or alcohol, and their behaviour puts employees, or others, at risk. Drug testing – particularly for safety critical posts – could for this reason be justified.
Justified drug tests
According to the Employment Practices Code published by the Information Commissioner’s Office, before carrying out drug testing in the workplace employers should ensure the benefits justify any adverse impact, unless the testing is required by law. It advises employers that:
- the collection of information through drug and alcohol testing is unlikely to be justified unless it is for health and safety reasons;
- post-incident testing where there is a reasonable suspicion that drug use is a factor is more likely to be justified than random testing;
- the amount of personal information obtained through drug testing should be minimised;
- given the intrusive nature of testing employers should undertake and document an impact assessment before testing starts;
- drug testing should only be used where it provides significantly better evidence of impairment than other less intrusive means;
- the least intrusive forms of testing should be used which are practicable to deliver the benefits to the business that the testing is intended to bring;
- workers should be told what drugs they are being tested for;
- the company drug policy should be outlined in the staff handbook, as well as the consequences for workers breaching the policy;
- any testing should be based on reliable scientific evidence of the effect of particular substances on workers;
- testing should be limited to those substances and the extent of exposure that will have a significant bearing on the purpose(s) for which the testing is conducted.
The Code says employers should ensure that information is only obtained through drug testing that is:
- of sufficient technical quality to support any decisions or opinions that are derived from it;
- subject to rigorous integrity and quality control procedures;
- conducted under the direction of, and positive test results interpreted by, a person who is suitably qualified and competent in the field of drug testing.
Employees, the Code says, should be given access to a duplicate of any sample taken to allow them to have it independently analysed as a check on the accuracy of the employer’s results. Employers should not assume that the tests are infallible and should be prepared to deal properly with disputes arising from their use.
Other legal considerations
Other issues employers should bear in mind before drug testing begins include:
- Employees must specifically consent to testing before it can be carried out, although the employee’s employment contract and company policy can stipulate that refusal to participate may result in disciplinary action.
- Drug test results count as sensitive personal data under the Data Protection Act 1998 (DPA 1998). Employees must give their consent explicitly and the results of the drugs tests must abide by the stipulations of DPA 1998, including considerations on storage and who should have access to the results.
- Unjustified drugs tests could constitute a breach of the employee’s privacy under Art 8 of the European Convention on Human Rights.
- ACAS guidance suggests that employers should make clear how so-called legal highs should be dealt with following the implementation of the Psychoactive Substances Act 2016.
Consequences of unjustified drug testing
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. This could lead to that employee bringing a successful claim for unfair or constructive dismissal.
Furthermore, if an employer obtains samples without consent this could constitute the criminal offence of assault of battery.
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 all statutory and internal disciplinary procedures are adhered to. Failure to do so will open them up to legal challenge from the employee.
In a recent experiment, broadcaster Angela Rippon hit the headlines after testing positive for opiates after eating poppy seed bread. Employees should always, therefore, be given the opportunity to explain themselves before action is taken.
An employee may also be able to defend a positive drugs test if they claim they are suffering from an addiction. In this scenario, 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 and seek medical evidence. An employer should then allow a reasonable time for recovery and consider whether any assisting treatment such as counselling 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.