A matter of substance

Whether
it’s cabernet sauvignon, cannabis or cocaine, it is generally agreed that
over-indulgence can affect an employee’s attendance, concentration and ability
to do the job safely. Employers must balance the need to guard against
substance abuse with the rights of employees, by Ana Baillie

At Common Sense Kall Centre, most of the employees are young and enjoy
partying. Friday evenings in the company bar can be rather exuberant affairs
and the company generally encourages this healthy social interaction between
staff. However, it has been suspected that some employees are using ecstasy,
and consumption may be taking place on the premises. To date, the company has
asked job applicants to take a drug and alcohol test as part of its standard
application process, and now wants to extend testing to existing employees. How
can it do this?

In common with many employers, Common Sense Kall Centre restricts its drug
and alcohol screening to job applicants only. This is largely because there is
no ongoing employment relationship which could be soured by asking someone to
take the test. If the job applicant declines, the employer can draw its own
conclusions.

Until recently, testing job applicants was reasonably straightforward.
Provided the screening procedure was implemented in a non-discriminatory
manner, employers could lawfully ask them to take a test. But since the
publication of the Data Protection Code of Practice on recruitment and
selection in March 2002, the situation has become more complicated.

One of the code’s specific recommendations is that vetting procedures should
only be carried out at the appropriate point in the recruitment process. It
suggests this should be restricted to the one individual who is successfully
selected. Common Sense Kall Centre should amend its procedures accordingly.

Testing current employees for drink and drugs is an intrusion of privacy.
When the employee gives a sample, an observer often has to be present to ensure
there is no tampering. The laboratory process itself could also be intrusive
since the analysis, if conducted too widely, may show up not only banned
substances, but also whether an employee is pregnant, or has any genetic
predisposition to disease.

Article 8 of the European Convention of Human Rights, incorporated into UK
legislation by the Human Rights Act 1998, states individuals have a right to
respect for their private and family life, home and correspondence.

The HRA will have an indirect effect on private companies undertaking
private business. Unlike the employees of public bodies, private companies’
employees will not have the right to use the provisions of the HRA to bring
claims against private employers. However, they will be able to argue that
their fundamental human rights have been undermined when fighting unfair or
wrongful dismissal claims.

At first glance, this right would seem to present employers with an obstacle
to introducing a general drug and alcohol testing regime. However, the Article
8 right is not absolute.

Qualifications exist that enable employers to screen existing employees for
drink and drugs, provided they can establish the necessary justification, and
show that the invasion of privacy is lawful and proportionate. However, Common
Sense Kall Centre may be able to justify testing as part of its health and
safety obligations. Under the Health and Safety at Work Act 1974, employers
have a duty to their employees to provide a safe working environment, and to
ensure that fellow employees are competent.

Statistics have shown that the abuse of drink and drugs by employees creates
significant dangers in the workplace – more than 50 per cent of all fatal
workplace accidents are alcohol related. Under the 1974 Act, employers have a
duty to prevent these dangers and failure to do so can give rise to civil and
criminal liability.

The HR and OH departments could therefore point to the company’s health and
safety obligations as the justification for introducing testing. It should be
explained to employees that the testing policy is required to promote the
safety of the workforce in general. On these grounds, it is likely that the
testing would be found to be a proportionate interference with the individual
employee’s Article 8 right to privacy.

It is vital to keep in mind that nobody can be tested against their will,
and consent must always be sought. The employer should also bear in mind that
testing alone will not resolve workplace drug and alcohol problems, and should
not be a substitute for a comprehensive policy.

What does the test show?

George and Howard work for Audacious Accounting, a major firm of auditors.

George’s performance and attendance have deteriorated over the past year,
and clients have started to complain about him – rumours abound that he has a
drinking problem. Howard, on the other hand, is an exemplary employee, and
clients love him. Audacious has a drug and alcohol policy which includes
testing employees, and both George and Howard have signed employment contracts
consenting to tests.

The HR team arranges a routine drug and alcohol test of all staff. Howard
fails the drug test because traces of cannabis are found in his urine. On
questioning, he tells his boss that while on holiday in Amsterdam three weeks
earlier, he smoked a few joints with friends. George scrapes through the test –
his alcohol level was just under the statutory drink-driving limit Audacious
has set as ‘acceptable’. However, after passing the test, he confesses he is
addicted to alcohol. What should be done?

The period of time during which a substance can be detected by sample
analysis varies depending on the particular test used, the substance, the
amount taken, and whether the person is a regular or occasional user.

Alcohol levels in the blood fall rapidly after consumption, within just a
few hours. Cannabis remains detectable for many weeks, but traces of cocaine
vanish within a matter of days. The testing procedure therefore may not reflect
Audacious Accounting’s priorities.

Although George was clearly under the influence of alcohol at the time of
the test, he passed because the firm does not operate a zero tolerance approach
to alcohol consumption.

Howard, however, was clearly fit and able to work on the day of the test,
but was caught out by consumption that took place weeks earlier.

Audacious should think about where and when substances have been consumed.
If it takes issue with Howard’s use of illegal drugs outside the workplace and
office hours, although it has no effect on his performance during working
hours, it may be in breach of the employer’s implied duty of trust and
confidence.

Although Howard does not have any directly enforceable HRA rights because
Audacious is a private company, it is likely that a tribunal would look to the
HRA when deciding whether Audacious had acted reasonably in objecting to
Howard’s extra-curricular activities.

The medical reports produced in respect of Howard and George by the testing
laboratory will amount to sensitive personal data under the Data Protection Act
1998. Their consent is therefore required not only to the invasion of privacy
in taking the test itself, but also to the subsequent processing of their
sensitive personal data when the laboratory produces the report and sends it
back to their employer.

For their consent to be valid, it is vital that the employees are told to
whom their results will be sent, and for what purpose the results will be used.

Medical or disciplinary action

Now that Howard has failed the test, Audacious must decide how to respond.
According to its policy, it may view the positive test result as either a
disciplinary or a medical issue. Taking the medical route is likely to be far
less confrontational, and reduce the possibility of claims against the company.
Although the Disability Discrimination Act specifically excludes drug and
alcohol addiction from its definition of disability, some of the effects of
alcohol addiction, such as cirrhosis of the liver, may fall within its scope.

If George is suffering from any addiction-related disabilities, Audacious will
need to show it has made reasonable adjustments, such as allowing him the
flexibility to work from home. The firm must tread cautiously if it decides to
invoke its disciplinary procedure in relation to his poor performance at this
stage. The disciplinary process can go ahead, but Audacious should be mindful
of its additional obligations under the DDA.

Ana Baillie is an associate in Employment, Pensions and Incentives at
Allen & Overy

This article first appeared in Employers’ Law. To subscribe call 01444
445566.

Introducing a drug and alcohol testing policy

– The purpose of the policy should be
clearly stated – to achieve a drug and alcohol free, and therefore safer,
working environment

– The policy should be clearly drafted and state how any breach
will be dealt with

– The policy should be clearly communicated to all employees in
staff handbooks and via the intranet

– The policy should make it clear how any refusal to take a
test will be viewed, particularly if it allows the company to dismiss the
employee

– The policy should confirm that the testing process will be
confidential and procedurally fair, and should explain what will be done with
the results, which will amount to sensitive personal data for the purposes of
the Data Protection Act 1988

– A term should be included in the employment contract of all
new recruits allowing the employer to test for drink and drugs

The policy should make it clear what kind of testing is
intended, either:

        For cause: only
used following an incident where an employee was suspected of being impaired
through the use of drink or drugs

        Routine:
involves the entire workforce, who are advised in advance that the testing will
take place; and/or

        Random:
generally only used as a deterrent for employees in safety sensitive jobs

Cause and routine testing can usually be justified if
sensitively handled. Random testing, however, is much more difficult to
justify, and can give rise to discrimination claims

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