When an employee’s conduct is likely to be gross misconduct employers will often automatically suspend them – why would you want someone at work who’s just thrown a chair across the room?
But no matter how serious the conduct might seem, it’s important not to suspend as a knee jerk reaction, you could be inadvertently creating circumstances for a successful unfair or constructive dismissal claim.
Drug and alcohol testing in the workplace can be a tricky issue for businesses to navigate with plenty of issues to take into consideration, including data protection.
Employers have a duty to ensure a safe place of work and safe systems for their employees, as well as to protect the health and safety of visitors to their premises and anyone else who may be affected by the work of their staff.
Substance misuse can seriously impair employees’ judgment and concentration which can affect the productivity and performance of employees at work, as well as attendance.
If effects of the substance persist, then performance can be impaired even when that drug or alcohol use happens outside of the workplace.
For some safety critical roles – such as HVG drivers, machinery operators or medical workers – substance misuse can have severe, even fatal, consequences.
On top of all that, an employer could be breaking the law if they knowingly allow an employee to be under the influence of drugs or alcohol at work, or are aware of drug-related activity in the workplace and fail to act.
The tricky issue of drug and alcohol testing
It’s understandable that employers may want to implement drug-testing in order to manage the risks mentioned above. However, drug and alcohol testing can be a tricky issue for businesses to navigate.
Employers must ensure the benefits to the business justify any adverse impact on the individual, unless the testing is required by law. Relevant factors to consider are whether the business or employee roles are safety-critical, as well as concerns over staff performance and organisational reputation.
Drug and alcohol testing of staff must also be managed in line with data protection legislation.
In this article we take a look at the rules relating to drug and alcohol testing at work and offer some guidance on best practice.
When can an employer test for drugs and alcohol?
The approach to drug testing will depend on the specific needs of the business and justification for testing. The Information Commissioner’s Office (ICO) states in its Employment Practices Code that testing workers for drugs or alcohol use is unlikely to be justified unless it is for health and safety reasons.
Where testing is used to enforce other rules or standards, employers should make sure those rules and standards have been clearly set out to workers. For example, testing to detect illegal use of drugs may, exceptionally, be justified where it would breach the employee’s contract or cause serious damage to the employer’s business, for example, substantially undermining public confidence in the integrity of a law enforcement agency.
Employers should also be careful to treat employees consistently and not single out an employee for testing unless this is justified by the nature of their role or a reasonable suspicion that a worker’s performance is impaired as a result of drug/alcohol use. It may be discriminatory to target an individual or a group of employees.
The Employment Practices Code sets out the following guidance for drug and alcohol testing at work:
- Undertake and document an impact assessment before testing.
- Only use drug or alcohol tests where they provide significantly better evidence of impairment than other less intrusive means. Use the least intrusive forms of testing that will bring the intended benefits to the business.
- Tell workers what drugs they are being tested for.
- Base any testing on reliable scientific evidence about the effect of particular substances on workers.
- Limit testing to those substances and the extent of exposure that will meet the purpose(s) for which the testing is conducted.
- Ensure random testing is genuinely random. It is unfair and deceptive to let workers believe that testing is random if, in fact, other criteria are being used.
- Do not test all workers, whether randomly or not, if only workers carrying out a particular activity pose a risk. Workers in different jobs will pose different safety risks, so the random testing of all workers will rarely be justified.
- Post-incident testing, where there is a reasonable suspicion that drug or alcohol use is a factor, is more likely to be justified than random testing.
How to undertake testing
If your business decides to implement workplace testing you will need to use a professional service with qualified staff that meet appropriate standards. The Employment Practices Code recommends that information obtained through drug and alcohol testing is subject to rigorous integrity and quality control procedures and is of sufficient technical quality to support any decisions or opinion that are derived from it.
In addition, employers who implement testing should create a policy that outlines their rules, reasons for testing, processes, how data will be used and the consequences of breaching the policy. Employers may also want to outline any support they want to provide to staff who have dependency issues or need assistance or treatment. The policy should be incorporated into the employee’s contract or staff handbook, forming part of their contractual terms and conditions.
What if an employee refuses to take a drug or alcohol test?
Businesses will not be able to require employees to submit to drug testing without their consent. However, a refusal to undertake a test may be disciplinary matter in circumstances where they are under a contractual obligation to do so.
Equally, if an employer has a reasonable suspicion that an employee is under the influence, or suffering the effects, of drugs and alcohol at work, then it may be reasonable to take disciplinary action against an employee who refuses to take a test. This may be the case if, for example, an employee has shown an obvious decline in their performance or a marked increase in incidents.
Employers should proceed with caution however, as unwarranted disciplinary action, or attempts to force or coerce an employee into taking a test against their will, could lead to an individual resigning and bringing a constructive dismissal claim (if they have the necessary length of service).
What if an employee fails a test?
A positive test won’t necessarily justify instant dismissal unless there is clear evidence of substance misuse taking place at work, or there has been a serious incident whilst under the influence.
When considering what disciplinary sanction is appropriate in light of a positive test, employers should consider the circumstances, the likely extent of the drug/alcohol use on the employee’s performance, and the risk posed to the health and safety of others. It is also important that disciplinary action is not taken until the test result is confirmed, although a suspension may be appropriate in the meantime if the employee is carrying out a safety critical role and there are genuine, reasonable concerns.
Employers should also discuss the results with the individual, give them the opportunity to explain themselves and explore the underlying reasons for any positive test result. For example, whether the issue is one of dependency or recreational use. The employee’s explanation will be relevant, as well as whether or not they admit using the substance. It’s also worth bearing in mind that, in unusual cases, positive results could even be triggered by something else entirely, such as a medical condition or treatment.
Addiction or dependency
Where addiction or dependency is identified, the issue may be one of capability rather than misconduct, and the focus in the first instance should be on encouraging and assisting the employee to seek help and treatment. A performance management process may also be warranted, which – if no improvement is seen, or confidence in the employee is undermined – may lead to dismissal.
Substance misuse may also be a sign that the employee is suffering from a mental health condition, such as depression, which may be classed as a disability. Where this is reasonably known, reasonable adjustments should be considered.In summary
The key takeaway for employers is that, while it may seem unbelievable, an employee who tests positive for drugs or alcohol cannot necessarily be fairly dismissed based purely on that positive result.
You’ll always need to dig deeper, and consider the whole picture, before taking any formal action.
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