In this article, we answer some frequently asked questions employers have around drug and alcohol testing in the workplace.
Q: Can we implement a drug screening procedure to monitor our employees at work?
A: Employers may be able to implement drug screening of their employees provided there are health and safety justifications for doing so. For example, if employees operate heavy machinery then it may be possible to justify a drug screening process if there are genuine concerns that if someone were to operate the machinery under the influence of drugs, they may cause serious injury to themselves or others.
If there are not genuine health and safety concerns e.g. employees working in an office, then drug screening is much less likely to be justifiable.
However, with any employee, you need their consent to conduct a drug test on them. This could be dealt with in employment contracts, although it may be prudent to ensure any new employees are fully aware of the drug screening process and ensure their attention is drawn to the specific consent in the contract.
It will be very important to have a clear policy setting out what drug screening takes place, how this is done, and to set out the consequences of failure to consent to drug screening (i.e. that this will be likely to result in disciplinary action). Any test results will also constitute sensitive personal date under data protection legislation, so it will be important to ensure that the data is kept securely and only accessed by those who need to.
Given the cost of drug screening, employers are most likely to implement random drug testing. Therefore, it is important to ensure that testing is genuinely random, and no individual is singled out as this could lead to issues such as the individual claiming they are being targeted for a discriminatory reason.
Q: We are concerned that one of our employees is drinking alcohol at work. This is contrary to our policies and rules. Can we test this employee to see if they are drinking at work?
A: Ideally, lees intrusive methods should be utilised first of all. For example, does the employee appear noticeably inebriated to his/her colleagues? If so, you could obtain statements from them. Is there any evidence of alcohol at the employee’s work space? An investigation may elicit evidence that can be used in any disciplinary action if necessary.
If there really is a need to test, then the employee’s consent will need to be obtained. Ideally a policy should set out under what circumstances alcohol testing will be done, such as when an employer feels there is cause for carrying out a test.
A test in this circumstance may not reveal if the employee is drinking at work, since alcohol remains in an individual’s system for a while and an employer cannot prevent an employee from drinking at home! Therefore, you may still need to obtain other evidence to be able to bring disciplinary action against the employee. However, if the employee’s job means it is imperative that they do not have high amounts of alcohol in their system when they arrive to work (for example, drivers) and that is clearly set out in a policy, then it may be possible to take disciplinary action if a test shows the employee does have unacceptable levels of alcohol in their system.
Another less legal issue is how you will react if it becomes apparent that the employee has issues with alcohol dependency – some employers may decide to provide support rather than take disciplinary action, but that will of course depend on the individual facts and the nature of the business.
Q: We operate a random drug screening programme of our drivers. One employee’s test has come back positive for cannabis. Can we dismiss the employee for gross misconduct?
A: The answer is potentially. If you have clear policies or rules which set out that disciplinary action would be taken if a test comes back positive, then you should be able to commence such action and potentially summarily dismiss for gross misconduct. However, you need to be careful that you are not just dismissing because of a positive test alone, as generally there also needs to be evidence that there has been impairment on the employee fulfilling their duties. This will be far easier where there are genuine health and safety concerns around being under the influence of drugs whilst at work, such as if the employee operates heavy machinery, drives, works in an environment with a high-level of hazards, or has a responsibility for making short-term decisions which can have a significant impact others (e.g. doctors). Relying on a positive drug test alone to justify a dismissal can give rise to claims in the Employment Tribunal for unfair dismissal (provided the employee qualifies for the right to bring such a claim i.e. they have at least 103 weeks’ continuous service at the time of their dismissal). You should also note that if an employee has 103 weeks’ service, you must follow a fair disciplinary procedure prior to dismissal.
There was a case heard in the Employment Appeal Tribunal (Kuehne & Nagel v Cosgrove (2013)) where an employee was dismissed because she tested positive for cannabis. The employee won her claim for unfair dismissal because she was dismissed for the positive test alone, and there was no evidence there had been any impairment in her fulfilling her duties. However, her compensation was reduced by 100% because of her contributory fault. Notably, it was recognised that the employer could justify their policy to dismiss as a result of a positive test because of the hazardous warehouse environment in which the employee worked.
It is always best to seek advice on individual cases to ensure that you understand the risks and how to limit the risks if necessary.
Q: We have a drug and alcohol policy which states we can test an employee if we have just cause to do so. We wanted to test an employee because she was exhibiting some strange behaviour at work and falling asleep at her desk. However, the employee refused to consent to the test. What can we do now?
A: Ideally, your policy will also state that unreasonable refusal to take a test can result in disciplinary action. However, it will be important to give the employee a chance to explain why they have refused, and to take into account what they have to say.
In a recent case heard in the Employment Appeal Tribunal (Chivas Brothers Ltd v Christiansen (2017)), the employee was successful in their claim for unfair dismissal and disability discrimination. Part of the case concerned the fact that the employee had been dismissed for refusing to take alcohol and drug tests on two occasions, but the employer was criticised for failing to take into account the employee’s reasons for refusal, including medical evidence that the employee submitted to demonstrate that he was unfit to attend the test.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).