It seems employers are using drug tests to sack staff without notice – a risky practice.
The charity Release recently claimed there has been a marked increase in employees being tested for drugs at work and that increased dismissals are being carried out as a direct result.
Many employers have a policy of random drug testing, especially where staff roles have an element of risk for the health and safety of the employee or others. If an employer wishes to be able to test its employees, it should have a clear policy in place, which not only sets out the circumstances where the employer can ask the employee to take a test but also the implications of refusing to comply.
There is no legal requirement for an employer to give an employee notice of any such test. However, if testing is going to be carried out without notice or at short notice, the employer should have a policy stating that this may occur. The employee cannot then use the argument that they were unaware they could be required to attend a drugs test. If an employee tests positive for illegal substances, the employer may be in a position to dismiss.
The general attitude of the Employment Tribunal is that drug use outside the workplace will only warrant dismissal if it impacts on the employee’s duties or it adversely affects the employer’s business or reputation. Therefore, it is not so straightforward. For example, a teacher, who primarily taught adults, was dismissed for possession of cannabis. The Employment Tribunal held that this was unfair. However, a similar case involving the dismissal of a forklift truck driver was held to be fair.
Although an employer cannot force an employee to take a drugs test, if an employee refuses to co-operate, the employer may be able to dismiss on this basis. This may be justified on the grounds that it is indicative of guilt but may also be on the grounds that the employee is in breach of their contract of employment, which requires them to submit themselves for random drug testing. It is very possible that an employer could win the argument that it was fair to dismiss an employee in these circumstances.
Employers must also be very careful to apply random drug test policies consistently. For example, targeting younger staff could give rise to claims of age discrimination. Any random testing should be monitored and recorded, with the records kept so that the employer can show they are implementing their policy fairly and not targeting specific groups of employees.
Public bodies will also have to have regard for the Human Rights Act and article 8 – the right to respect for private and family life. This only applies to public bodies, but the Employment Tribunal and the Employment Appeal Tribunal, while being careful to recognise this right, have been quick to point out that we are talking about illegal substances and the protection of the health and safety and wellbeing of others. This right needs to be balanced and therefore is unlikely to provide a blanket defence to the employee.
Historically, employers have been far more supportive and patient with employees who may have issues with illegal substances or who fail a random drug test. In the current climate where many employers are looking to cut costs, reliance is being placed on such random drugs tests to justify dismissal. Dismissal in these circumstances is likely to amount to gross misconduct, which means the employer can dismiss without notice and without having to make a redundancy pay, which in some cases could be substantial.
Strict reliance on such policies may affect the morale of staff, who feel they are under suspicion, that there is a lack of trust, and the employer is essentially out to get them.
While retaining motivated and well-trained staff is obviously very positive, the current economic climate and pressures on businesses may mean that the trend to dismiss where possible remains with us for some time.
- If a clear policy is in place, it will be much easier for employers to dismiss in the appropriate circumstances
- You cannot force an employee to take a drugs test, though (with a policy in place) an employee’s refusal may be sufficient basis for dismissal
- Employers must take care to apply random drug test policies consistently
- Reliance on drug testing policies may affect staff morale and tests should be considered carefully before implementation
Tracy Lacey-Smith, head of employment, SA Law