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.
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 Code says employers should ensure that information is only obtained through drug testing that is:
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 issues employers should bear in mind before drug testing begins include:
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.
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.
Nicola is a dual qualified journalist and non-practising solicitor. She is a legal journalist, editor and author with more than 20 years' experience writing about the law.
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