The Law
You have a general duty under the Health and Safety at Work etc Act 1974 (HSW Act) to ensure, as far as is reasonably practicable, the health, safety and welfare at work of your employees. You also have a duty under the Management of Health and Safety at Work Regulations 1999, to assess the risks to the health and safety of your employees. If you knowingly allow an employee under the influence of drug misuse to continue working and his or her behaviour places the employee or others at risk, you could be prosecuted. Your employees are also required to take reasonable care of themselves and others who could be affected by what they do at work.
The Transport and Works Act 1992 makes it a criminal offence for certain workers to be unfit through drugs and/or drink while working on railways, tramways and other guided transport systems. The operators of the transport system would also be guilty of an offence unless they had shown all due diligence in trying to prevent such an offence being committed.
The Road Traffic Act 1988 states that any person who, when driving or attempting to drive a motor vehicle on a road or other public place, is unfit to drive through drink or drugs shall be guilty of an offence. An offence is also committed if a person unfit through drink or drugs is in charge of a motor vehicle in the same circumstances.
The principal legislation in the UK for controlling the misuse of drugs is the Misuse of Drugs Act 1971. Nearly all drugs with misuse and/or dependence liability are covered by it. The Act makes the production, supply and possession of these controlled drugs unlawful except in certain specified circumstances (for example, when they have been prescribed by a doctor). If you knowingly permit the production or supply of any controlled drugs, the smoking of cannabis or certain other activities to take place on your premises you could be committing an offence. The Act lists the drugs that are subject to control and classifies them in three categories according to their relative harmfulness when misused.
CLASS A - includes ecstasy, cocaine, heroin, LSD, mescaline, methadone, morphine, opium and injectable forms of Class B drugs.
CLASS B - Includes oral preparations of amphetamines, barbiturates, cannabis, cannabis resin, codeine and methaqualone (Mandrax).
CLASS C - includes most benzodiazepines (eg Temazepam, Valium), other less harmful drugs of the amphetamine group, and anabolic steroids.
The penalties for offences involving controlled drugs depend on the classification of the drug. Penalties for misuse of Class A drugs are more severe than those for Class B drugs which in turn are more severe than the penalties for Class C drugs. The Act also distinguishes, in terms of the penalties that may be imposed, between the offences of possession and drug trafficking or supplying, with the latter attracting higher penalties.
It is possible that in certain circumstances charges may be brought against an employer or an employee under either this Act or the Health and Safety at Work Act or both. It would be up to the courts to decide on the circumstances of each case.
A leaflet showing the most commonly misused substances by adults in the UK can be downloaded here. We try to keep this information up to date and relevant but cannot be held responsible for any mistakes or omissions. For a full and up to date list, we recommend to visit the Home Office website - www.homeoffice.gov.uk.
Insert leaflet download pic hereThe Corporate Manslaughter and Corporate Homicide Act 2007 is a landmark in law. For the first time, companies and organisations can be found guilty of corporate manslaughter as a result of serious management failures resulting in a gross breach of a duty of care. The Act, which came into force on 6 April 2008, clarifies the criminal liabilities of companies including large organisations where serious failures in the management of health and safety result in a fatality. The HSE welcomes and supports the Act. Although the new offence is not part of health and safety law, it introduces an important new element in the corporate management of health and safety.
Prosecutions will be of the corporate body and not individuals directly, but the liability of directors, board members or other individuals under health and safety law or general criminal law, will be unaffected. Therefore the corporate body itself and individuals can still be prosecuted for separate health and safety offences.
The Act also largely removes the Crown immunity that applied to the previous common law corporate manslaughter offence. The Act provides a number of specific exemptions that cover public policy decisions and the exercise of core public functions.
Companies and organisations should keep their health and safety management systems under review, in particular, the way in which their activities are managed and organised by senior management.
Convictions for corporate manslaughter can carry heavy fines for the employer on conviction. Organisations guilty of corporate manslaughter can be given up to a seven-figure fine, and rarely less than £500,000, states the Sentencing Guidelines Council. For other health and safety offences that result in death, convicted companies can expect a six-figure penalty.
However, Cotswold Geotechnical Holdings (the first UK company to be found guilty of this offence) were fined £385,000 on the 17th Feb 2011. It's annual turnover has been estimated at around £300,000 in 2007.
Justice Field stated "It may well be that the fine in the terms of its payment will put this company into liquidation. If that is the case it's unfortunate but unavoidable. But it's a consequence of the serious breach,"
The court can also impose publicity and remedial orders. A publicity order is a new power, under which the court can require a defendant company to publicise the full details of the conviction in whatever medium the court considers appropriate - such as the national press, a company's website, and notices to clients.
A conviction for gross negligence manslaughter carries a maximum sentence of life imprisonment for the individual, although the sentences have usually been around 18 month to two years in previous cases.
- It is an offence for employees to carry out, and for employers to allow employees to carry out, safety critical work while under the influence of drugs or alcohol (Transport & Works Act 1992 section 27)
- The Employer have a defence to prosecution if they can show "due diligence" to prevent an employee committing an offence (Transport & Works Act 1992 section 28)
- To "fail" a test includes refusal to take it (Transport & Works Act 1992 section 38)
- Transport & Works Act 1992 prescribes limits for alcohol to be same as Road Traffic Act
- HSE guidance: "due diligence" requirement can be satisfied by a robust drugs and alcohol policy, including education and training, support for those seeking rehabilitation, screening procedures (pre-employment and for-cause)
- If the employer shows due diligence, then the employee could be guilty of an offence
- Employers have a general duty under the Health And Safety At Work Act to ensure the health, safety and welfare at work of their employees
- Employers also have a duty under the Management of Health and Safety at Work Regulations to assess the risks to the health and safety of employees
- If the employer knowingly allows an employee under the influence of drugs to continue working and his/her behaviour places himself/herself or other employees at risk, then the employer could be prosecuted
- Employers also have a duty to third parties under Section 3(1) of the Health and Safety at Work Act. This states that employers must conduct their employees in a way which ensures, so far as is reasonably practicable, that people who are affected by the operation of those employees are not exposed to health and safety risks
- There is a potential criminal liability for all employers who knowingly allow or at the very least tolerate, the use of controlled drugs on company premises under the Misuse of Drugs Act, 1971
- An organisation is guilty of corporate manslaughter if the way its activities are managed or organised causes a death and amounts to a gross breach of a duty of care to the person who died.
For more details of how your company, organisation, employees and/or customers can benefit from introducing a robust and legally defensible Drugs and Alcohol Policy, then please contact our friendly and professional customer service team on 08450 505590 or via email (enquiries@screensafeuk.co.uk).
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DOs and DON'Ts Leaflet |
