Professional
Drugs and alcohol policies are a commonplace practice in today's workplace, but Michelle Chamberlain, solicitor, reminds employers that testing employees without their consent may give rise to civil action as well as criminal prosecution.
Drug and alcohol policies are now commonplace in many organisations but the question of drug and alcohol testing, particularly "random testing" at work, remains controversial. A recent TUC report suggests that one in eight UK companies are now conducting drug testing in the workplace and four out of five employers would be prepared to test employees if they felt productivity was at stake.
However, employers should bear in mind that they have no right to test for drugs or alcohol without an employee's consent. Forcing an employee to take a test against their will may give rise to a number of employment-related claims as well as a charge of criminal assault. If an employer wishes to undertake screening, it should expressly provide for this in the employment contract - this will still not permit testing against an employee's will, but would place the employee in breach of contract if they refused to be tested. Even where such contractual permission exists, an employer should not assume that testing will be appropriate in all circumstances. To avoid falling foul of human rights and data protection legislation, an employer must be able to justify why recourse to testing in a given situation is considered necessary.
Human Rights
The process of testing, which often involves collecting urine, saliva and breath samples, raises significant issues of privacy and employers must take care not to infringe an individual's human rights. Most commonly cited in this context is the right to respect for private and family life (Article 8) under the Human Rights Act 1998 ("HRA"). This right is qualified, which means that it can be overridden in certain circumstances, for example, in the interests of public safety or the prevention of disorder or crime.
Although private sector employees cannot bring direct claims for breach of the HRA (only public sector employees can do this), they could rely on this legislation in support of a tribunal complaint, for example, for being dismissed for refusing to undergo a test. This is because the HRA requires all courts, including employment tribunals, to interpret legislation in a way that is compatible with human rights.
Drugs & alcohol testing should be about assessing the competency of an employee to perform a specific job, not a way of controlling off duty behaviour where the employee's work is not affected. Generally, an employer should have a reasonable suspicion that an employee is suffering from an impairment which makes them a health and safety risk and/or unsuitable for their position.
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