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.
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.
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.
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:
+44 (0) 808 172 93 22
This update is for general guidance only and does not constitute definitive advice.