Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner at Mills & Reeve, advise on implementing an alcohol and drugs policy and how to carry out random drug testing.

The question:

I am currently pulling together an alcohol and drugs policy, and one area is looking at drug testing. I would like to put in a section where it states that we can request employees to take a drug test if we suspect that they are at work under the influence of drugs.

However, I am concerned that this might be a breach of human rights. Am I being too cautious? Also, if we did this and an employee’s test was positive, would you look to dismiss (after offering support)? Finally, how would you approach random drug testing?

Legal advice:

Esther Smith, partner, Thomas Eggar

These days it is fairly common practice for employers to have a policy on drugs and alcohol. Part of that policy is to implement a testing procedure. Such a policy is not contrary to human rights as long as all employees are informed of this implementation and the reasons behind it.

In some industries or businesses, it may be easier to justify having such a policy, for example if the employees are operating machinery or driving, but equally it is perfectly permissible for all employers to impose a strict policy on their employees attending for work of any kind under the influence of drugs or alcohol.

Even with a policy giving employers the right to test, they will still need to show that they have implemented that rule reasonably and this means that you would need some grounds to ask that particular employee to undergo a test. If you did it without good reason, or in some way to single that employee out, you would be at risk of a claim, even if your policy gave you the right to test.

On random testing, there is no problem with this, so long as, again, it is implemented reasonably and fairly to all employees.

However, one of the main issues with having a policy of testing is the logistics of actually conducting the test and actioning the outcome. Whilst they may show that the employee has used some drugs or alcohol, they will not conclude that the employee has been under the influence at work. Some substances stay in the blood for several weeks, and a positive test may mean that they have used drugs outside of work but this will not automatically mean that they have infringed the employer’s policy.

Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information please visit Thomas Eggar.

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Martin Brewer, partner and employment law specialist, Mills & Reeve

Let me deal first with the policy, as that is the cornerstone of your question. Can you have one at all and if so how do you go about it?

Can I suggest that before you go much further with this you visit the information commissioner’s website at www.ico.gov.uk and read the Employment Guidance, part of which deals specifically with information gathered through drug testing. Some key points are as follows:

• Carry out an impact assessment first so as to measure the benefits of the testing against the adverse impact on employees.




• Ensure that you can justify those chosen to be tested using appropriate, transparent and clear criteria which have been communicated to the employees.




• Only randomly test those employees in safety critical roles.




• Drug test solely for safety purposes, not, for example, for prying into an employee’s private life.




• Ensure that employees know the consequences of failing a drugs test.




• Ensure the integrity of the testing by using a reputable laboratory.

The information commissioner does not see this as a human rights issue per se, and I tend to agree. It is correct that everyone has a right to respect for their private and family life, but that is dealt with by the principle that you should test for safety reasons not merely because you want to find out about what an employee does in their spare time.

As you can see, the guidance answers almost all of the points you have raised and helps with such things as impact assessments and the requirement of specific consent, which you will need if collecting this ‘sensitive personal data’ within the meaning of the Data Protection Act 1998.

The question to ask yourself up front is this: will having a policy be of any practical use?

You can certainly write a drugs testing policy and into that policy you can write that employees will be required to undergo regular and/or random drugs testing.

But since you cannot actually force an employee to undergo a drugs test, as drugs testing against an employee’s wishes will either be an assault (because you will need a blood or hair sample for example) or will require you secretly testing their urine, neither of which seem terribly sensible approaches to employee relations. As such, one key issue will be what you do if the employees refuse to undergo the test.

If the policy is contractual, then failure to comply by the employee will be a breach of contract and may be sufficiently serious to lead to summary dismissal, although ideally if you do want to go down this route you should express it in your policy and repeat it in your disciplinary policy.

Failing that, a breach will lead to a warning escalating over time to dismissal. Much will depend upon the initial reason for the test and there will be a difference between testing someone because you perceive that they may be under the influence of drugs (where there will presumably be evidence of intoxication as without that you couldn’t be suspicious) and merely random testing where there is no particular suspicion, it’s just a matter of routine.

Finally, you will need to consider what you do if you carry out a drugs test and it turns out to be positive. Are you going to dismiss, warn the employee, tell the police? Will your test differentiate between legal and illegal drugs and will your reaction be different depending on which is discovered?

This is not as simple as it may seem. Imagine two scenarios: Employee A is found with prescription drugs in his system. He has driven to work and his drugs say that he should not drive whilst taking them. Is this akin to careless driving; will you tell the police; will they be interested?

Employee B is found with a very small amount of an illegal drug in his system but you are advised that the amount is so small that it would not have had a significant effect on the individual. His level of ‘intoxication’ by drugs is equivalent to a small beer. Do you discipline, tell the police, perhaps even dismiss?

These are fine judgements, and before this particular can of worms is opened you must think through how you will deal with this.

Martin Brewer can be contacted at: martin.brewer@mills-reeve.com

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