This week Nicholas Snowden, Senior Solicitor at Clarkslegal LLP and Helen Badger, employment law expert, Browne Jacobson present their ideas on the extension of random drugs and alcohol testing.
The question:
We carry out random Drugs & Alcohol testing on our employees. Part of our policy is that if someone fails on the alcohol test then we suspend them on full pay and then follow the disciplinary process. As a caring employer we do not allow them to drive home, but arrange for either a taxi or a colleague to take them. My question is, if someone fails a pre-employment alcohol test, do we have a duty to provide transport home for them, i.e. as they are not employees of the company? Any suggestions would be welcome!
The answers:
Nicholas Snowden, Senior Solicitor at Clarkslegal LLP 
I think you are entering the realm of moral duties here, rather than legal ones. It is not your organisation’s duty to prevent an applicant who has been drinking and who may be over the drink-drive limit, from driving. It is their personal responsibility and only they can incur criminal liability as a result of their actions.
When dealing with an employee, you have the additional duty of mutual trust and confidence to take into account, as well as your health and safety obligations. Therefore, your practice of arranging transport is a good one.
I would say that organising transport for an inebriated applicant would be a good idea as well, from a moral point of view. However, legally, I do not see that any liability could attach should your organisation fail to do so. This is because you do not have a duty of care towards an applicant once they leave your premises after the interview.
On another note, I do not know the nature of your business, but from a data protection/human rights point of view, you should be aware that you need strong health and safety reasons to be testing applicants in this way.
Helen Badger, employment law expert, Browne Jacobson 
In my experience it is quite unusual to carry out a random alcohol test prior to a candidate becoming an employee of a company and it is difficult to provide advice without knowing your reason for testing job applicants.
Looking at the facts, there is no legal obligation on your company to provide transport home if an employee or a candidate fails an alcohol test. On a moral basis you may wish to try to prevent people from driving home if you were aware that they would be over the legal alcohol limit and could be putting lives at risk.
In the case of job applicants, if you did not wish to cover the cost of transport then you should at least suggest they make alternative travel arrangements. Coming back to your question, this is about being a caring employer and a good corporate citizen rather than meeting your legal obligations.
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