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Top Tips on the legality of drug and alcohol testing
In July the drug and alcohol screening firm, Concateno, published a report in which it revealed that the number of workers testing positive for drug or alcohol use rose by 50% between 2007 and 2011. In the wake of this report we have had an increasing amount of interest in the feasibility of conducting testing on UK employees.
There is limited guidance in the UK as to the implementation of a programme of random drug testing, and the law is unclear. However, below we give our “top tips” on this issue – if, when and how an employer could go about introducing such measures.
1. Know the legal position:
Under the Health and Safety at Work Act 1974, employers have a duty to ensure a safe place of work and safe systems of work for their staff. When considering substance misuse, this would include having clear rules about coming to work under the influence of alcohol or drugs and about drinking alcohol or drug taking while at work. However, there is no strict requirement to carry out testing of staff.
Guidance about drug and alcohol testing is also contained in the Employment Practices Code (“EPC”). This sets out the circumstances in which testing would be deemed justified, and the good-practice procedure to follow if you do decide to implement testing.
2. Establish whether testing is justified for your business:
Because of the intrusive nature of testing, employers must have a good reason to justify a policy of testing staff and should always consider whether there is a less intrusive means of monitoring employees.
Random testing of employees is more likely to be justifiable if there is a strong health and safety reason, for example for employees working in mines or operating heavy machinery. In contrast, it will be harder to justify testing for employees who are office-based, because there is a lower risk of danger to life in their workplace activities.
Alternatively, where an employer reasonably suspects an employee is under the influence of alcohol or non-prescribed drugs at work, (e.g. after an incident, or if the individual exhibits abnormal behaviour or appearance) they may be able to justify “post-incident” testing of individuals.
Employers should bear in mind, however, that testing should be confined to ensuring safety at work, rather than to reveal any use of substances in an employee’s private life.
3. As a pre-cursor to implementing any policy, carry out an impact assessment:
An impact assessment will enable you to ascertain the impact the policy would have on employees as against the benefits that would be obtained for your business. The policy should only be implemented if the benefits for your business are found to outweigh the impact on staff.
4. Policy planning: what, who and how?
Consider what data you wish to obtain, who you wish to obtain it from, how you will keep such sensitive personal data and how it will be used. The amount of personal information gathered should be kept to a minimum, and the least intrusive means of testing possible should be employed. Consider whether all staff will be tested, or only certain categories of employee.
Give staff several weeks’ warning that the policy will be introduced, and explain your company’s reasons for introducing the policy. Staff should also be given an indication as to the consequences of failure to comply. They should be afforded the opportunity to ask questions and discuss the policy in person.
5. Be aware of the potential consequences
It is likely that this would not be a popular policy amongst staff. As such, employers must be alive to the risk of potential claims arising from implementation:-
Discrimination –reasonable adjustments may be required to modify testing procedures which cause a disabled person to be disadvantaged. For example, would a disabled person fail to pass the test because of the medication they are taking?
Breach of contract – Consent is required for testing. If an employee refuses to consent and the employer proceeds anyway or disciplines the employee for refusing to consent, this may give rise to allegations that the employer is acting in breach of the implied term of trust and confidence, and a claim of constructive unfair dismissal.
Enforcement – If an employee refuses to consent to testing, this can be treated as a misconduct offence. However, if disciplinary action resulted in a dismissed, the employer is likely to face complaints of unfair dismissal. Further, if there is a mass-objection to testing, the employer could be forced to back-track on the policy entirely!
Compensation for a claim of unfair dismissal is currently capped at £72,300 based on the claimant’s lost earnings, plus a basic award calculated in the same way as a statutory redundancy payment. Compensation for a successful claim of discrimination is also loss based, but is not subject to any cap.
In addition to the employment claims, failure to comply with the EPC may also amount to a breach of the Data Protection Act 1998 in which case the ICO can investigate, conduct audits, issue enforcement notices, and in the most serious cases impose fines of up to £500,000.
6. Be prepared for the aftermath
If you do discover that your staff are dependant on alcohol and/or drugs, you need to decide how you are going to react. An employer will need to decide what its approach to staff dependant on alcohol or drugs will be: supportive, disciplinary or a mixture of the two.
Conclusion: proceed with caution!
A rolling programme of random drug testing should only be used where it is appropriate given the nature of the employer's business and the roles undertaken by its staff. It is our understanding that unless your employees operate heavy machinery or work in an environment where working under the influence of drugs could cause injury to themselves, colleagues or customers, or could seriously damage your business, such a policy would be contrary to the EPC.