Sports people accept the concept of drug testing, but to what extent can employers outside sport introduce the practice in the workplace? Rhodri Davey considers the legal position following recent guidance from the Information Commissioner
In a 2003 MORI poll, conducted on behalf of the Independent Inquiry into Drug Testing at Work, 4% of the 200 companies surveyed conducted drugs tests already and a further 9% said they were likely to introduce tests in the next year. These results may appear low but they are not surprising when you consider that there is no direct legislation on the subject of testing employees for drugs and alcohol.
Under the Health and Safety at Work Act 1974, all businesses must ensure that the health and safety of their employees is not compromised. However, before an employer can introduce testing in the workplace, it must balance this duty with the right of its workers to privacy under the Human Rights Act 1998.
Article 8 of the Human Rights Act states that 'everyone has the right to respect for his private and family life, his home and his correspondence'. Therefore, if an individual chooses to use cannabis in his own time, then notwithstanding the potential criminal implications, that is part of his private life. However, the right under article 8 is not an absolute right and there may be a conflicting right or duty which outweighs it.
Employers are not responsible for law enforcement and the fact that the employer believes that an employee is using illicit drugs out of work does not mean that the employer can insist on testing that employee. However, if the employer believes that the employee's use of drugs or alcohol is impacting on that employee's ability to perform duties, then the situation may change. But with no clear legal framework, employers are faced with various risks if they introduce drug testing.
A significant risk arises where an employee is forced to undergo a drug test. If the test takes the form of a blood test, and the employee has not given consent, the employer could face criminal charges for assault.
Therefore, if faced with an employee who refuses to give consent, the employer will have to consider whether there are grounds to take disciplinary action against the employee. Simple refusal to undergo a test will not automatically lead to a disciplinary sanction.
As always, the employer will have to follow a disciplinary procedure that includes holding a meeting with the employee. If the employee has a genuine phobia of needles, it would be unreasonable for the employer to issue a warning or dismiss. The employer should try to ascertain if the employee will consent to other ways of testing that avoid the use of needles.
Take, for example, an employee who believes that the drug test is an invasion of privacy, and as such is a breach of the implied duty of trust and confidence. He may choose to resign and claim constructive unfair dismissal. Faced with such a claim, the employer will have to show that the action was justified on health and safety grounds and that the decision to test was fair and reasonable.
The only way that such risks can be minimised is to ensure that a proper and considered approach is adopted to drug testing.
The Information Commissioner has issued an employment code of practice in four parts. The fourth part (which includes guidance on drug and alcohol testing) was published on 15 December 2004. So far, this is the only substantive guidance there is on drug and alcohol testing in the workplace. The guidance states that:
The code recommends that drug testing should be of the highest technical quality and subject to rigorous quality control procedures. To that end it must be conducted under the direction of a medically qualified person and positive test results interpreted by a person competent in the field of drug testing.
It also acknowledges that while drug testing can confirm whether the employee has taken certain drugs within a prescribed time frame, it is no measure of the effects of those drugs in terms of intoxication or impairment. Therefore, employers must think carefully about the need for testing in the workplace, the extent to which it should be implemented, who will be the subject of testing, and the impact that it will have on employees.
For example, an airline would be likely to make a strong case for testing its pilots before a flight, but it would have difficulty introducing testing for its cleaners. The key issue in that case being the health and safety threat posed by an impaired pilot.
There are also issues under the Data Protection Act 1998 relating to how results will be treated, processed and stored. Clearly, such results have the potential to reveal significant sensitive information about an individual. What should an employer do if the test results reveal evidence of heroin abuse? Who, within the organisation, will have access to such information? Where and for how long will it be stored?
An employer who wants to introduce drug and alcohol testing in the workplace (either for existing staff or potential staff) must be able clearly to show that it is justified on grounds of health and safety and must only test in accordance with a well-drafted policy. Ideally, that policy will have been introduced following consultation with employees (or their representatives) and will clearly set out the employer's acceptable parameters and its approach to testing.
Even with such a policy, employees have to consent to being tested; otherwise the employer will commit an assault. If an employee refuses to give consent in the face of a genuine health and safety concern, then employers will have to resort to disciplinary action for failure to follow a reasonable lawful instruction.
Rhodri Davey is an employment law specialist associate solicitor at west country-based law firm Ashfords
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