Where an employer’s operations rely on safety-sensitive procedures – in the transport or energy industries, for example – it is common for them to reserve the right to perform drug and alcohol testing at work on employees in the contract of employment.
Some industries require employers to alcohol and drug test employees by law. The process can be tricky to navigate, whether mandatory or elective, as case law has shown over the years, with employment tribunals finding companies dismissed employees unfairly after apparently failing drug testing in the workplace. After exploring a few technical points, we’ll look at some important cases.
The legality of Drug Testing In The Workplace
It can be a sensitive issue for employees who may argue that what they do in their private life has no bearing on their employment. However, employers will want to be sure that the safety of their operations isn’t compromised by employees who may still be under the influence. Drug testing in the workplace is a lawful process provided that the employer explicitly informs workers of their employee drug testing policy and it is an agreed term of employment. Employers should back this up with a clear indication of the consequences of a positive employee drug test.
Conducting Random and Planned Drug And Alcohol Testing At Work
Planned drug and alcohol testing at work will allow an employee to arrange activities around it and may not be as effective as a random test. Where random workplace drug and alcohol testing is preferred, you should be specific in your policy. Regardless of the frequency, a robust, practical procedure is a must, with appropriate members of management training in how they should implement it.
Employees Refusing Workplace Drug Screening
You should set out the consequences of failing to comply with workplace drug screening in the company policy. Employers are likely to view such a failure as a disciplinary offence which could result in dismissal. It would be advisable to consider the employee’s reason for refusing drug testing in the workplace and possibly allow time for reconsideration before taking action.
Tribunal Decisions For Refusal Of Random Drug Testing In The Workplace
Below are three examples of random drug testing in the workplace and their outcomes:
Fair dismissal for refusal by the manager: When Asda dismissed an employee for refusing to take employee drug screening, they found it acceptable because he should have set an example as a manager.
Defective employee drug testing policy wording: A logistics company’s employee drug and alcohol testing policy stated that ‘intoxication at work’ was a dismissable offence, and they dismissed her. An employee failed an employee drug test and was positive for cannabis, but the employer could not prove she was actually under the influence at work; she only admitted to smoking cannabis a week previously. They found her dismissal to be unfair.
Consider further medical evidence: A road construction company successfully used medical evidence to corroborate a positive cannabis test, following workplace drug screening, and defend an unfair dismissal claim even though the employee claimed he had passively inhaled it.
Summary of Drug Testing In The Workplace
Have a carefully thought out alcohol and drug testing in the workplace policy which does not restrict the circumstances in which you can take action;
You should train managers to understand the aims of the policy. These aims should include how to recognise the effects of drug use and how to implement a test;
Have a robust, mandatory drug testing in the workplace procedure, using approved methods and ensuring transparency and a process for allowing the employee to challenge the result. Further medical evidence may be required.
Drug Screening for Employment FAQs
Can I drug test employees if I think they are under the influence at work?
As an employer, you are legally allowed to drug test employees if you believe they are under the influence of a substance in the workplace and if you have an employee drug and alcohol testing policy. All employees must know your company’s occupational health and safety policy.
If an employee fails drug testing in the workplace, can I search them for substances?
Suppose you suspect an employee of drug and alcohol misuse and may be under the influence of a substance at work. The employee is fully aware of your workplace drug and alcohol use policy. In that case, you can ask them to undergo employee drug screening and search for substances. Typically, you wouldn’t be allowed to search personal items such as handbags but providing you have reasonable suspicion caused by failed drug testing in the workplace. You would have good grounds to search, and the employee would face disciplinary action.
Can I conduct drug testing for employment purposes?
If you are going through the process of recruiting new members to your workforce, you are allowed to carry out drug testing for employment purposes. Obviously, you would need the applicants’ permission, and they would need to agree to the methods you use. You can employ an outside company to carry out testing, or you could conduct the potential employee drug screening process in-house. Several tests range from simple urine tests to saliva, hair and fingerprint tests, and using an accredited laboratory to check for substance abuse. Pre-employment drug tests are becoming more popular to check for substance misuse and drug-related activities during the employment process. Ensure your drug or alcohol testing is fair to avoid any potentially discriminatory practices.