DRUG ABUSE

The uppers and downers ofworkplace testi ng

Kate Minett and Fudia Smartt consider the arguments for andagainst screening employees for illegal drug use

Kate Millett andFudia Smarttaresolicitors ill theemplospnent departnient

at Russell-Cooke

'Any discussion of workplacedrug testing raises difficultlegal and practical issuesabout, amongst other things,health and safety, dataprotection and human rights.Perhaps more fundamentallyit also calls into questionthe nature of the boundarybetween employees' workand private lives.'

December 2010/January 2011

There are conflicting rep ort son whe ther d rug test ing inthe workplace is beco ming

more frequent. Release, an organisationthat focuses on drugs, the law andhuman rights, repo rted a fourfol dincrease in calls to its drugs teamabout problems with workplacetest ing in the first three month s of 2009compa red wi th the same period in2008. On the other hand, the TUC hasrecentl y ind icated that there is no realevidence that drug test ing is becomin gcommonplace in British workplaces,othe r than perhaps in safe ty-criticalareas, such as transport and ene rgy,or after an inciden t.

What canno t be denied is that theuse of illegal drugs in British societyis wides pread. The 2008 British CrimeSur vey showed that 5.3% of thewo rking-age population uses illegaldrugs regu larly. However, it is not clea rwhether the percent age of people whoare actually in work and regul arly useillegal d rugs is higher or lower thanthis. Meanwhile, the re is anecdo talevide nce of aggressive marketingcampaigns by various US-baseddrug-testing companies.

Any discussion of workp laced rug test ing raises difficult lega land practical issu es about, amongstother things, health and safe ty, dataprotection and human right s. Perh apsmore fundamentally, it also calls intoquestion the nature of the boundarybetween employees ' wor k andprivate lives.

Types of testingDru g testing is usu ally carried out onone of the followi ng bases:

• pre-employment drug testin g ofpotential em ployees as a cond itionof taking them on;

• rando m drug test ing of employeesat rand om or regul ar interva ls; and

• post-incident drug testing of anem ployee afte r a specific workplaceincident or accide nt.

In term s of post-inciden t testin g,some employers automatically carrythis out after any incident , and othe rsdo so only if it is sus pected that drugsmay have played a role. An employermight , for instan ce, carry outpost-incid ent drug testin g so that,in the event of a positive result, it cantry to avoid liabilit y.

Mechanics of testingOften, drug tests ,do not involvechecking for the presence of drugs inthe bod y, as mos t drugs break downqu ickly. Instead, most tests look forthe chemicals which rema in in thesys tem afte r the drug breaks down .These chemicals are called metabolitesand can be foun d, for ins tance, in hair,swea t, sal iva, ur ine or blood.

The extent to which metabolites canbe tested for depends on the substancetaken and the typ e of sample used inthe test.

IllegalityThe Misuse of Drugs Act 1971 (MDA)is the principal legislation coveringdrugs-related offences in the UK.The MDA pro vides that production,possession and/o r supply of a controlledsubstance are offences, except in

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DRUG ABUSE

An employee who uses illegal drugs in the workplacewill be committing a criminal offence, as will anemployer who knowingly permits this.

They carry out a doc umented risk and impact assessment.

Employees consent, ideally contractually, to every testing procedure.

Employers who wish to implement a drug-testing programme sho uld ens ure that :

balanced agai ns t an employee's right topri vacy. Article 8 of the Human Right sAct 1998 (HRA) states that everyonehas the righ t to respect for their pr ivateand family life. Any infri nge ment ofthat right mu st be a prop orti on atemeans of achiev ing a legitimate aim.For example, random d rug test ingof train drivers is jus tifiable becau segua rdi ng the safe ty of rail passengersis a legitimate aim and, given theterrible consequences that an accide ntcould have, prop orti onate. Altho ug h itpreced es the introduction of the HRA,the Employment Appea l Tribunal'sdecision in Roberts v British RailwaysBoard [1997) reflects this reasoning byfinding that the dismissa l of a railwaynet work employee, following a positi verandom drug test, was fair. However,randoml y testin g all of a railwaycompa ny's office workers is unlikely tobe jus tifiable.

Employers shou ld also be mindfulof employees' right to privacy in thepractical implementatio n of adrug-testing programme. Th is ispar ticularly relevant to the argumentput forwa rd by so me employers thaturine samples can only be taken withsomeo ne else in the room to ensure thatthe sample is not d ilut ed or substitu ted.The TUe condemns this requirem entas ' unreasonable and a breach ofhuman rights' . Before implementingsuch an invasive mea sure, employersshould consid er whe ther there isa serious risk of the sample being

Testing is carried out as part of a comprehensive drug (and alcohol) policy, whichemployees are made aware of. The policy should clearly set out any disciplinary action,including dismissal, that the employer will take if an employee is found to be under theinfluence of drugs, or taking drugs at work, or is convicted of a drugs-related offence .

There is a procedure for ident ifyi ng and handling incorrect positive test result s andpos itive tests for prescription drugs.

They fully con side r and meet the requirements of all the relevant legislation (seemain article).

Any laboratory or agent that conducts an analysis on the employer's behalf isaccredited by the UK Accreditation Services and complies with the InternationalStandard for Laboratories (ISO 17025).

Implementing a drug-testing programme

AssaultParticular care sho uld be taken not toforce employees to provid e a sample,

Right to a private lifeEven where drug testing is carried ou tfor safety reason s, the extent to wh ichit confers real safe ty ben efits has to be

as to do so could cons titu te assa ultoccasioning actua l bod ily harm underthe Offen ces Agai ns t the Person Act1861 and common law assa ult andbattery.

se rious safe ty risks. However, the levelof risk posed in other environmen ts,such as an office, is less clea r. Ind eed,resea rch carried out by the Health an dSafe ty Executive in 2004 was unable toshow a d irect link between workplaceaccidents and drug use alone, altho ug hthis may reflect a relatively low nu mberof employees who atten d wo rk underthe influence of drugs.

one theless, employe rs will have amu ch stro nger case for jus tifying d ru gtesting in cases where any impairmentof employee performance wouldcompromise the safe ty of employees orservice users.

influe nce of drugs, the situa tion isless stra ightfo rward . The extent towh ich an employer will be just ified intaking any act ion ove r an employee'sactivities ou tside work will depend onthe facts of the case and myriad legalconside rations.

Health and safetyUnd er the Hea lth and Safety at Worketc Act 1974, employers hav e a gene ralduty to ensu re, as far as reasonablypr acticabl e, employees ' health, safe tyand welfare at work . If an employee isunder the influence of drugs at work,and places other employees at risk as aresult, the employer cou ld be liable toprosecut ion if it allows the employee toconti nue working.

The risk presented by an employeewho might be under the influe nceof drugs wi ll dep end on the roleper formed and the drug taken .

It sho uld be noted that it is anoffence under the Transp ort and WorksAct 1992 for cert ain wo rkers to beunfit through use of drink or drugs onspecified transport sys tems . In addition,the Road Traffic Act 1988 outlawsdriving a motor vehicle when unfit todo so through drugs or drink.

In transport and other heav yind us tries, it is clear that being underthe influ ence of drugs at work causes

specific circu mstances (for example,where a drug has been prescribed bya doctor). It is also an offence underthe MDA for someo ne to knowinglypermit production, supply and/or use ofcontro lled drugs on their prem ises.

Evide ntly, an employee who usesillega l drugs in the wo rkp lace willbe committing a crimina l offence, aswill an employer who knowinglypermits this. Emp loyment tribunaldecisions indi cate that di smi ssal willbe a reaso nable response to drug use atwo rk pro vid ed, as held in Templeton vFreight and Repair Service(Taunton) Ltd[1985), the employe r follow s the properpro cedure first.

However, wh ere an employeeuses drugs outside of work, anddoes not attend work under the

10 Employment law Journal December 201O/January2011

For many employers, the illegality ofdruguse is a secondary concern to the health

andsafety issues.

tampered with and whe the r a lessin trusi ve test can be used .

'Public autho rities' (a term definedwide ly in the HRA) are required to actin accordance with the right s set out inthe HRA, which is directly applicableagainst them . Although private sectoremployers are not directly bound toact in accord ance with the HRA, theyshould still be aware of its requirements.This is becau se tribunals are required toread and give effect to legislation, so faras possible, in accorda nce with the HRA.

Data protectionInformation about an individual'shealth, which would include drug use,is defined as 'sensitiv e personal data 'under the Data Protection Act 1998(DPA). As a result, any drug testingand the storage and treatm ent of anyperson al data ga the red as a result ofthe testing mu st, in add ition to meetingnormal ~ata protection requirements,meet the higher threshold that appliesto processing of sens itive personaldata . The DPA provides that sens itivepersonal data can onl y be processedif at least on e of the conditions inSchedule 3 of the DPA is met , whichincludes the employee ha ving givenexplicit consent to the processing.

The Employment Practices Cod e,which sets out the Inform ationCommissioner's recomm end ations onhow to meet the legal requirements ofthe DPA, gives specific guidance on drugtesting. It indicates, for instance, that:

• random drug testing is unlikely tobe justified unl ess it is for healthand sa fety reason s;

• criteria used for selecting wo rkersfor drug test ing should be justified ,properly do cum ented andadhered to;

• employees should know whatsubs tances they are bein g tested forand the possible conse que nces ofbeing tested ;

• the am ount of per son al informationobtained through drug test ingsho uld be minimised ;'and

• test results and related informationshould be kept secure.

The Employment Practices Codealso states that, with certain exceptions,

December 201O/January 2011

it will. rarely be jus tifiable for anemployer to car ry out drug tests so lelyto reveal illega l drugs use by employeesin their pri vate lives. However, formany employe rs, the illegalit y of d ru guse is a secondary concern to the healthand sa fety issues.

Drugs-related dismissalsDism issals based on a posit ived rugs test could, de pendi ng onthe circumstances, fall ins ide thefollowi ng po tentia lly fair reaso nsfor dismi ssal unde r ss98(1) and (2)of the Employ ment Rights Act 1996(ERA): capability, conduct, breach of asta tutory restriction and/or some othe rsubs tantial reason .

Before relying on one of thesereasons for dismi ssal, the employer

should prop erly conside r the widercircums tances and any mitigatingfactors, which will show whether(for the purposes of s98(4) of theERA) it acte d reasonably in treatingits reason to d ismi ss the employee asa sufficient one. The employe r shou ldalso ensure that the di smi ssal is fairat a procedural level.

To reduce the risk of an unfairdismi ssal find ing, the employe r sho u ld:

• have a clear policy (whichemployees are made aware of) thata positive test result will lead tosumma ry dism issal;

• ga in employee consent to drugtesting; and

• ensure there is clear ev ide nce thatdrug (or alcohol) use has impairedthe employee's performan ce at wo rkand/or put the safe ty of colleaguesor members of the public at risk.

The importan ce of a cleardrug-testing policy can be see nin cases like O'FIY Il Il v Airlinks theAirportCoach Co Ltd [20021. Thisconfirms that an employe r is morelikely to be able to establish that adrugs-related dismi ssal is fair where itcan show that there was a drug-test ing

DRUG ABUSE

policy in place and employees wereaware of its contents.

Ca re should also be taken toensure that there is no basis for anemployee to argu e that a significantreason for the dismi ssal wasdiscriminatory under the EqualityAct 2010, or that the di smi ssal was anact of retali at ion for having mad e aprotected disclosure under the Publi cInterest Disclosure Act 1998.

Employe rs sho uld be awa re thatsome prescrip tion drugs can givepositive results in cert ain drug tests. Anind ividual may be tak ing a prescribeddrug to treat a condition that fallswithin the definition of a disabilityunder the Equalit y Act. An employeewho is di smi ssed after testin g positivefor drugs in these circums tances would

be likely to have a claim for disabilitydiscrimination .

To test or not to testThe TUC argu e that d rug test ingdoes not 'address the real issue,which is the ability of the workerto function safely' . It is true thatmany other factor s, including tiredness,illness, stress and the use of alcoholor medicines can impair an employee'sperformance: Argu ably, illegal d ruguse is a less widespread cau se ofimpairm ent than these othe r factors.Despite this, employers in specificindus tries will be jus tified insee king to carry out random drugtesting to ensure that employeeand public safety is not put at risk.However, before doing so, theysho uld ensure that they fullyunderstand the legal conside rationsand risks involved in random drugtest ing in the workplace. •

O'FlYIlII v Airlinks the AirportCoach Co Ltd[2002] EAT/0269/01

Roberts v British Railways BoardUKEAT 648_96_1601

Templeton v Freight and Repair Service(Taunton) LtdCase no 21126/85

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