Questions and answers

The employment law team at Allen & Overy answer questions on workplace
issues

Drug and alcohol testing

Q:  Can I test employees for
drugs and alcohol?

A:  Provided that testing is
not implemented in a discriminatory manner, there is no legal restriction on
employers asking applicants to undergo pre-employment tests or making any offer
of employment subject to the applicant consenting and the results being
"clean".

However, during employment there is no right to test employees without
consent. An employer who does so could find itself facing an assault charge.
There may also be grounds for an employee to claim constructive dismissal if
the employer is unable to demonstrate reasonable grounds for testing.

An employer should always seek consent to the testing, make contractual
provision for any test it may wish to carry out (making clear that a refusal to
take a test will be a matter of misconduct which may lead to the application of
a disciplinary procedure) and follow an established procedure which ensures
fairness.

This is not, however, the end of the problem. Employers should also note:

– Confidentiality must be preserved as testing may disclose the use of
prescription drugs.

– Whilst alcohol levels fall rapidly after consumption, other drugs remain
detectable. Taking disciplinary action against an employee can be difficult if
drugs were taken outside of the workplace or outside contractual hours. Much
will depend on the circumstances. Drug or alcohol abuse may undermine the
relationship of trust and confidence and provide grounds for dismissal but that
will not automatically be the case.

– The action to be taken if a "positive" result is obtained needs
to be considered. The employer should establish a policy which sets out whether
positive results will be treated as misconduct to be dealt with under the
employer’s disciplinary procedure or as a medical matter to be dealt with by
assisting the employee.

– The Data Protection Commissioner’s draft Code of Practice includes a
section on drug and alcohol testing providing that: covert testing should not
normally be conducted; testing, unless justified on safety grounds, should only
be conducted as part of a programme for the detection and treatment of
substance abuse; if testing on health grounds, employers should not test only
for illegal drugs as safety can also be compromised by legal drugs; and that
testing used as a basis for decisions affecting a person’s employability must
be conducted under the direction of a medically qualified person.

Ian Fyffe

Request for personnel file

Q:  Am I obliged to give a
copy of a personnel file to an employee who requests it?

A:  The Data Protection Act
1998 (the "DPA") has created the right for an employee to view the
contents of a personnel file held by their employer containing personal data
relating to them.

For the purposes of the DPA, "data" means information which is
recorded as part of a relevant filing system. A "relevant filing
system" is one which includes "personal data" which is
"structured, either by reference to individuals or by reference to criteria
relating to individuals, in such a way that specific information relating to a
particular individual is readily accessible".

Personal data includes any expression of an opinion about an individual and
any indication of the intentions of an employer in respect of that individual.
Employers should recognise that all paper and electronic based personnel
records now potentially fall within the data protection regime.

An employee is entitled to know of, and receive, a description of any
personal data relating to them together with the purpose of the data and to
whom it may be disclosed. The personal data should be communicated to the
individual in an intelligible form with information as to its source. Under the
provisions of the DPA, the employer is not obliged to supply personal data
unless he has received a written request and a fee.

If there is any danger of disclosing information relating to another person
who can be identified from that information, then the employer is not obliged
to comply with the request unless the other person has consented to the
disclosure of the information or it is reasonable not to request the consent of
that person.

An employee has no right under section 7 of the DPA to gain access to a
confidential reference given by an employer for the purposes of education,
training or employment. Employees do have a right to access references given
about them by third parties to the employer. It is not necessary to hand over
information if it would affect negotiations (for example, on a termination) or
if it is covered by legal professional privilege.

If they have not already done so, employers should start acting now. Many
organisations are either confirming with their employees some of the basic data
held about them (for example, name, address, career history, qualifications and
length of service) or they are making facilities available for employees to
check personal files.

Martin Palmer

E-mail and Internet monitoring

Q:  Do I have the right to
monitor employees’ use of e-mail and the Internet?

A:  An employer may monitor
employees’ e-mail and Internet use provided the employer has reasonable grounds
to believe that both parties to a communication have consented or if the
interception is a "lawful interception" as defined in the Lawful
Business Practice Regulations (the Regulations).

Clearly, it may not be practicable for employers to obtain consent from the
recipient of e-mails. However, the employer can still monitor as long as it has
made all reasonable efforts to inform employees that their e-mail and Internet
use may be monitored. Also, any interception must be for one of the lawful
purposes in the Regulations. These include monitoring for the purpose of
detecting unauthorised use of the system, such as downloading of pornography,
or to ensure the effective operation of the system such as virus checks.

Accordingly, employers are advised to publish a policy on e-mail and
Internet use and make it clear in that policy that the employer may monitor
e-mail and Internet use to ensure that the systems are being used for proper
purposes.

Monitoring e-mail and Internet use also raises data protection issues. The
Data Protection Commissioner’s draft Code of Practice is much more restrictive
than the Regulations in relation to monitoring. It is hoped that following the
recent consultation process the Data Protection Commissioner will clarify how
these different areas of legislation should be read together.

In the meantime, employers will be acting lawfully in monitoring so long as
their activities comply with the Regulations, even though this may not be
permitted under the draft Code.

Victoria Vallely

Inappropriate material

Q:  Can I discipline and/or
dismiss employees for circulating inappropriate material?

A:  The short answer is
probably "yes" although, as ever, there are a number of important
factors to be kept in mind. The circulation of inappropriate material either in
hard copy or by e-mail is often likely to constitute misconduct or gross
misconduct. Recent tribunal cases have confirmed that disciplinary action
including dismissal can be justified, depending on the circumstances.

In the context of e-mail circulation, most employers draw a distinction
between receiving inappropriate material and forwarding it on to others. It is
difficult to justify taking disciplinary action against an employee for merely
receiving an offensive joke, where the e-mail was unsolicited by the employee
and he/she had no way of preventing its receipt. The more serious offence is,
of course, to forward the e-mail on to others.

Before deciding whether to take disciplinary action, an employer should
always carry out an appropriate investigation. This will invariably involve
interviewing witnesses, reviewing e-mail records or other evidence and holding
a disciplinary hearing.

The employer should also have regard to its own policy on such matters. It
is increasingly common and advisable for disciplinary and e-mail/Internet
policies to state expressly that circulation of inappropriate material
constitutes misconduct (and possibly gross misconduct) so employees can be left
in no doubt about the consequences of such actions.

Regard should also be had to consistency and proportionality. In determining
the fairness or otherwise of a dismissal, a tribunal is entitled to take into
account how an employer has dealt with previous instances of misconduct.

Jonathan Carr

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