What Do Employers Need to Know about Drug Testing at Work?

The newspapers have been dominated this week by England footballer Rio Ferdinand and his failure to turn up for a compulsory drugs test. This case brings into the public eye some of the problems associated with drug testing at workplaces in general, for example: when is it necessary? how should it be carried out? What happens if the employee fails, or refuses/forgets to participate?

The Legal Position

- The Management of Health and Safety at Work Regulations 1999 require employers to assess the risks to the health and safety of employees. If an employer knowingly allows an employee under the influence of drug misuse to continue working and his/her behaviour places the employee or others at risk, the employer could be prosecuted.

- The Misuse of Drugs Act 1971 make it illegal for any person knowingly to permit drug use on their premises except in specified circumstances (for example, when they have been prescribed by a doctor).

- The Road Traffic Act 1988 and the Transport and Works Act 1992 require that drivers of road vehicles must not be under the influence of drugs while driving, attempting to drive or when they are in charge of a vehicle.

Drugs at Work Policy

The HSE advises implementing a written policy on drugs at work. This should consider the following issues:

- Is there a problem? Have procedures in place to find out if there could be an existing problem, for example, examining sickness records and consulting with staff.
- Screening. A recent survey found that four out of five employers would be prepared to drug test their employees if they thought productivity was at stake, but that very few firms at present actually do test their workers for banned substances.
- Procedures for if you discover a problem. What will you actually do if you find that an employee is under the influence of drugs at work? The HSE advises that the policy should seek to help employees rather than lead simply to dismissing them, but the policy must say that possession or dealing in drugs at work will be reported immediately to the police.

Gabriella Wright, Partner at top law-firm Charles Russell and employment-law expert suggested: "To test in the first place you should make express provision for this in the employment contract, so employees know what the score is when they take the job on. Make sure there is a good reason for testing, for example health and safety, where the employer could be liable to prosecution if it didn't take steps to ensure the safety of its workforce.

"When testing will be carried out should also be made clear: if you're going to test only if you have concerns about an individual's fitness for work, say so; if you're going to random test, say so. Make clear what the consequences of a positive result will be (the reasonableness of any penalty will depend upon the nature of the business and the employee's role in it). Wherever possible, obtain consent for each test undertaken. Make clear what the consequences of refusing a test will be - if it is a disciplinary offence say so.

"If the contract does not address these issues, employees pressurised to submit to a test may resign and claim constructive dismissal and any dismissal by the employer might well be unfair. Conversely, if the rules are clearly spelt out and communicated, this will assist an employer in persuading a Tribunal that any subsequent dismissal was fair."

Random Drug Testing

Employers have no explicit legal right to force employees to undertake drug tests. Drug testing at work would need to be justified on health and safety grounds. For example, you may be able to argue that if dangerous machinery or driving is involved then drug tests are justified. Employers should also make sure that the results of drug tests are handled in such a way to comply with the Data Protection Act 1998.

Gabriella Wright continued: "Data protection rules mean that testing is only likely to be justifiable if as part of a voluntary health and safety programme or to prevent a significant risk to health and safety in the workplace, or to determine an individual's fitness for work. Wherever possible less intrusive means should be used. In all cases the employer must carry out an impact assessment, weighing up the business risk to be addressed against the disadvantage caused to the individual in being asked to submit to a test.

"Any negative impact on an individual's human rights does not necessarily preclude drug testing, even random testing, where the risk being addressed justifies the intrusion, for example where public safety is at stake. Above all it is a question of proportionality and balancing the employer's and employee's differing interests and needs."
This document is for general guidance and research purposes only, and does not purport to give professional advice. Please check the date at the top of the article; the Workplace Law Network retains historic articles for general research.