Testing times in the workplace

Testing times in the workplace

Employers who suspect that an employee has taken drugs that affect their work are faced with a difficult task if they want to take action. Employers may wish to use a drug test to “prove” that the employee has taken drugs, but their ability to do so is limited. The Human Rights Act gives all employees the right to have respect to privacy, making it difficult to force testing. Where this involves a blood test, without consent the employer could be charged with criminal assault.

The Information Commissioner issued an employment code of practice recently which is the only substantive guidance on drug and alcohol testing in the workplace.

The guidance advises four criteria:

• 1.

  Before introducing testing, employers should ensure the benefits justify any adverse impact.

• 2.

  Testing should be confined to workers in safety critical activities.

• 3.

  Employers should only gather information through testing to ensure safety at work rather than to reveal the illegal use of substances in a worker’s private life.

• 4.

  Employees should be fully aware of the testing and the consequences and should give their consent.

Essentially, drug testing must be very limited and the consent of the employee is required. The degree of risk posed by drug use is a key factor, so employees operating dangerous machinery may be liable to testing, whereas those undertaking administrative tasks would not. It will be important to show an adverse impact at work which justifies the invasion of privacy, and the employer must be able to show that other steps to investigate the matter have already taken place and not proved conclusive.

Employers should remember that they are not required to prove beyond reasonable doubt that an employee has taken drugs. A reasonable belief,following a full and fair investigation, may suffice to justify dismissal(depending on the individual employer’s policies and procedures). Proof that an employee has taken drugs will not necessarily justify a dismissal.

Be careful to avoid discriminating against someone with a disability, which is why the investigatory meeting is so important. Dismissing an employee who has just been diagnosed with, for example, diabetes and is struggling to get it under control would lead to a very expensive disability discrimination claim.

Employers who want to impose drug testing on some or all of their employees should get their policies and procedures in order before commencing such tests. The procedures should make it clear that drug testing may be required, in what circumstances, and the consequences of a positive test. Importantly they will make it clear what happens in the event of a failure to consent, and will outline the employer’s justification for testing. It is also important that other policies, such as the disciplinary policy, are in line with this and that it is clear that drug taking is a potentially disciplinary offence.

For more information about drug testing at work contact Philip Paget, head of employment law at Yorkshire Law firm Gordons, Tele: 0113 227 0212; E-mail: philip.paget@gordonslegal.com

Philip PagetHead of employment law at Yorkshire Law firm Gordons.