Do we need to do any paperwork before we implement pre-employment drug-testing? Esther Smith and Adam Partington advise.
The question: Can we drug test?
I work for a manufacturing company that is investigating pre-employment drug testing for its locations across the UK. What will I need to do to ensure it is legal, fair and justified? Do I need to draft any paperwork to help with this? How should I handle agency workers in regards to pre-employment drug tests?
Legal advice:
Adam Partington, Solicitor, Speechly Bircham LLP
Drug testing is an intrusive course of action and one that can give rise to sensitive results. Data protection law recognises the sensitivity of drug test results and has stipulated that information held on health is ‘sensitive personal data’ for which its use must be justified. A drug test can only be administered with consent, otherwise it may be an assault. To be justified either the candidate must freely give their explicit consent to the drug test (which they are free to withdraw) or the test must be justified by the employer’s legal obligations (commonly being to maintain health and safety standards). An employer should be satisfied that the testing is a necessary, justified and proportionate measure and should consider less intrusive ways of meeting the objectives, for example using a health questionnaire as an alternative to a drug test or as a means to select those required to undergo a drug test. It would be sensible to record the business purpose for which testing is to be introduced and the sensitive data condition that can be satisfied (e.g., to protect health and safety). Employers should bear in mind that they are also under an obligation to ensure that information obtained through testing is relevant, is accurate, is up to date and is kept secure, for example by limiting access to test results through password protected software. It should also be retained no longer than is necessary.
Preferably an employer would only obtain information through testing of applicants or other potential workers at an appropriate point in the recruitment process, i.e., where there is a real likelihood of appointing the applicant. An employer should make it clear early on in the recruitment process that individuals may be subjected to testing once there is a likelihood that they will be appointed and the consequences if testing yields a positive result. Any rule on pre-employment drug testing should be communicated to candidates. A suitable method of doing so would be to record the rules regarding drug testing in a recruitment policy document provided to the applicant. The policy document should make it clear what information is going to be collected, how this is going to be done and why it is required. This ensures a level of transparency to the drug testing process. An employer would have a hard time justifying covert drug testing methods. Agency workers can be included, and, if so, the policy should cover the fact that testing also applies to agency workers. Also bear in mind that any job offer should make it clear if the offer is conditional upon satisfactory drug test results.
Adam Partington can be contacted at adam.partington@speechlys.com. For further information, please visit www.speechlys.com.
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Esther Smith, partner, Thomas Eggar
Some cases have seen employees trying to challenge an employer’s right to drug test as a breach of a private life, under the Human Rights Act 1998, but this has not stacked up, and a tribunal has had no difficulty in finding that the employer was justified in enforcing their policy.
In light of this, you should not get into difficulty in requiring any agencies who supply you with staff to ensure that the people they supply have been subject to the same policy requirements as your direct employees.
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.
