If you suspect one of your employees is taking drugs, and their work performance at work is deteriorating, is there anything you can do about it? Debbie Taylor of Mercia Group looks at the legislation that can assist businesses to take action against employees.
When is it appropriate to test staff?
In an environment with machinery, which could cause serious accidents if used inappropriately, it would not be unreasonable for the ‘misuse of drugs or alcohol’ to be cited as an act of gross misconduct and for an employer to include within the company’s policy that target testing would be used.
On the other hand, it is less likely in a ‘normal’ office environment for testing to be considered reasonable. For example, if an assistant in an accountancy practice is repeatedly absent from work on Mondays and patently unable to concentrate on her duties during the early part of each week and may be suspected of taking drugs, it would not be appropriate for her employer to ask her to take a drugs test.
In any event, if the right to random or target testing is not included in the organisation’s normal rules and procedures, it can only take place voluntarily. Covert testing should never be carried out unless it is part of a police investigation into a serious crime.
It is vital that employers get workplace drugs testing right. If it is done inappropriately, then any disciplinary action taken as a result is likely to be unfair and may result in tribunal claims.
The two areas of law to consider are the Human Rights Act 1998 and the Data Protection Code of Practice – Information about Workers Health (see HR Zone story Data protection code issued on workers health). The latter is currently in draft form and expected to come into force in July 2004 after a period of consultation.
Human Rights Act
Article 8 of the European Convention on Human Rights sets out the right to respect for private life. Drugs testing by its very nature is invasive. Therefore an employer will need to be able to justify both the fact that drug testing is being carried out and the type of testing being used, for example, if the work involved health and safety risk as in the case of transport workers.
The draft Data Protection Code also suggests that drugs testing is unlikely to be justified unless it is for health and safety reasons. If it is to be used, it is important that this is clearly set out in the organisation’s policies and procedures and made known to all staff.
In all circumstances, any testing must be of the highest technical quality and subject to vigorous quality control procedures and employers should, therefore, use a professional testing service.
If you want to send an employee, about whom you have concerns, for a drugs test and there is a health and safety risk, you may wish to review your policies and contracts. Otherwise you will have to follow normal disciplinary procedures for conduct at work or underperformance, not for taking drugs, as in the case of the accountancy assistant.