Category Archives: under the influence

Are Legal Highs a Workplace Issue?

DrugsSUMMARY: Use of legal highs has increased recently – how can employers manage this in the workplace?

The increase in the use of legal highs is now widely publicised.  Given this increase, the reality is that some employees may be at work under the influence.  This could present employers with two main problems: impaired employee performance; and serious health and safety implications for both the employer and the employee.

Whilst some employers may dismiss this issue on the basis it is unlikely to be a significant concern for them, the following points are worth noting when deciding whether to be proactive:

  1. Many so called “legal highs” are actually illegal.
  2. The drugs can have the same effects on users as some more traditional illegal substances.
  3. During 2014 in England, such drugs were implicated in 129 deaths.
  4. Legislation is currently going through Parliament to ban the supply of these drugs.

We would therefore recommend the following action points for employers:

  1. Update policies – consider how this issue can be covered in alcohol and drugs policies.  Employers should have clear rules about coming to work under the influence of drugs and alcohol and about taking drugs or drinking at work.  Legal highs can be treated in the same way as other drugs would be.  If policies are unclear, this is the time to update them.
  2. Remind – remind employees attending work under the influence of drugs that the use of legal highs at work is banned and ensure that they are aware of relevant policies and the potential sanctions for breaching these policies.
  3. Educate – educate staff and line managers on the signs of drug use, what to be aware of and the action they should take.

Contact Details

For more details about the issues in this employment law article or if you would like an alcohol and drugs policy please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

Can Employers Test Employees for Drug Use?

FG Solicitors - Drug Free Zone (cropped)SUMMARY: As drugs testing has become a more common consideration in the workplace, employers need to ensure their testing practices are legally compliant.

Why should employers be concerned about drugs and alcohol at work?

Employers want to ensure that employees are carrying out their roles effectively. This may not be the case where employees are under the influence of drugs or alcohol, which can result in (amongst other concerns) impaired job performance, health and safety concerns, increased short-term sickness absence and a deterioration in their relationships with colleagues, customers or managers.

In addition, possession of some drugs is illegal and employers could be breaking the law if they knowingly allow drug-related activities in the workplace and fail to act.

When can employers test employees for drug use?

It is possible for employers to carry out drug screening, but the screening should be justified, necessary and proportionate. An employer is likely to be able to justify screening where working under the influence of drugs could give rise to:

  • health and safety considerations (eg. where staff drive, or operate machinery, or where accuracy or decision making impacts on the health and safety of others); or
  • serious damage to the employer’s business.

If an employer cannot show the above, it is unlikely that screening would be appropriate and if it is carried out they could be in breach of legislation such as the Data Protection Act 1998.

If testing is necessary, employers should take into account the following key points when testing for drugs:

  • Testing should be carried out with the employee’s consent (although an employer may make withholding consent a disciplinary matter).
  • Employees should be told what drugs are being tested for.
  • Testing should be limited to those substances which could adversely affect the employee’s  performance.
  • Employees should be told what could be the possible consequence of their refusal to submit to testing or for failing the test.
  • Testing should not be carried out on samples obtained without the employee’s knowledge.
  • Employers should not single out particular employees for testing unless this is justified by the nature of their jobs.
  • Employers should use a reputable and recognised means of testing.
  • Employees should be given the opportunity to see and challenge the test results, including providing them with duplicate samples so they can carry out their own independent checks.

Case example

One example of where an employer could justify carrying out drug testing is where the employer is a bus company and its drivers are tested; it is imperative for health and safety reasons that they are not under the influence of drugs when they are conveying a bus load of people.

However, an employer should be careful with the results of any such testing and should bear in mind that tests are not infallible. Even if test results are positive, this does not remove the requirement under the ACAS Code of Practice to carry out a reasonable investigation.

First Bus is recently reported to have discovered the importance of carrying out an investigation after it dismissed a bus driver who tested positive for cocaine. First Bus apparently would not listen to his alternative explanation for the positive saliva test; at the tribunal his solicitor argued he had handled hundreds of pounds of cash on the day of the test, which could have been contaminated by cocaine. He took a hair test himself, which showed no traces of cocaine in his system. Ultimately, the employment tribunal is reported to have awarded him the maximum amount of compensation for unfair dismissal.

This case highlights the importance of carrying out a meaningful investigation before any decision about disciplinary action is taken, which would include permitting the employee to challenge the results and put forward their own version of events.

Substance Misuse Policy

The Information Commissioner’s Office Employment Practices Code suggests that a drug or alcohol policy (which we refer to as “substance misuse”) should be contained within a staff handbook.

A substance misuse policy usually includes clear rules relating to the employer’s stance on coming to work under the influence of alcohol or drugs (whether prescribed, over the counter or controlled substances) and about drinking alcohol or drug taking while at work.

It could also set out details of any drug screening (and alcohol testing), which should include the circumstances in which drug screening would be undertaken. For some employers, it would not be appropriate to include drug screening, for the reasons set out above.

Finally, one advantage of a substance misuse policy is that the consequences of a breach of it (such as disciplinary action) can be made clear to employees. This is key to ensuring any dismissal which may occur is fair.

Conclusion

In answer to the title question: yes, employers can carry out drug testing, but only in limited circumstances, usually related to health and safety, and it is good practice to have a drug/alcohol/substance misuse policy.

Contact Details

For more details about how to deal with drug issues which may arise in the workplace or if you would like a substance misuse policy please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.