With a new law for corporate manslaughter in the offing, drink and drugs
testing is at the forefront of many employers’ minds. But how far can you
justify such an intrusive policy and how do you ensure it’s legal? Louise Reohr
advises
The duty on employers to safeguard their staff’s health and safety is an
onerous one. Add to this a series of highly publicised disasters put down to
human error, and it is hardly surprising that almost a third of employers are
considering introducing random drink or drugs testing in the near future.
Thirty-one per cent of respondents to a recent Personnel Today-sponsored
survey said they are considering testing, many from safety-sensitive sectors
such as transport and manufacturing. Currently only one in 10 tests for alcohol
or drugs and an even smaller proportion have tested job applicants.
But introducing a system of testing for substance abuse is no
straightforward proposition. In the first place, there are commercial considerations
to be taken into account – administering a testing regime is not cheap. There
are also important employment relations issues: testing is often regarded with
suspicion. And not least, there are number of tricky legal hurdles to
negotiate.
Testing is a highly intrusive business, and there are number of legal
protections employees may be able to rely on if the employer has not thought it
through.
Health and safety is the reason usually quoted for testing. All employers
are subject to a general duty towards employees to take reasonable care for
their health and safety. A similar duty is imposed under section 2 of the
Health and Safety at Work Act 1974, breach of which is a criminal offence. In
addition, employers who fail to take reasonable care to ensure that their
employees do not cause injury or damage to others may be held vicariously
liable. However, simply because an employer has a duty of care to its employees
and third parties does not mean it is automatically entitled to test in all
cases.
Employers need to be aware of the implications of the Human Rights Act 1998.
An employee in the private sector cannot rely on the HRA directly. However, if
he were dismissed for testing positive or for refusing to undergo a test, he
might bring an unfair dismissal claim and ask the employment tribunal to
consider the provisions of the HRA in assessing the reasonableness of the
dismissal.
This argument was raised recently by an employee working in the National
Express group who failed a random drug test and was then dismissed. The
tribunal was asked to consider whether the test interfered with the employee’s
right to private and family life under article 8 of the European Convention of
Human Rights. The right, however, is not absolute and may be interfered with on
certain grounds so long as that interference is proportionate. The tribunal
found that because the employee worked for a transport company, the testing was
justified in order to protect public safety. But if the individual had worked
in a different industry or role the decision may well have been different.
Testing will almost inevitably involve the processing of "personal
data" within the meaning of the Data Protection Act 1998. Accordingly, employers
need to be aware of the eight principles set out in the Act governing
processing of such data. In particular, the data must be processed "fairly
and lawfully" and must be "adequate, relevant and not excessive in
relation to the purposes for which it is processed".
The Information Commissioner has issued draft guidance that details how
employers should apply these principles in practice (see panel). Its
implications are that routine testing of all employees is likely to be regarded
as excessive and will be much easier to justify for staff in safety-critical
areas. But employees within non-safety critical sections should be tested only
on a "for cause" basis – that is, where performance has been impaired
and the employer has reasonable grounds for believing substance abuse is the
reason.
What is a positive result?
If an employer has decided that testing is justified and has decided who it
is justified in testing, it will need to consider what it is actually looking
to test for. They will need to bear in mind the Information Commissioner’s
draft guidance, which stresses that testing should in most cases be confined to
evidence of performance impairment.
Alcohol is perhaps the easiest substance to deal with since this remains in
the blood for only a few hours and is therefore a rough guide to impairment.
Even so, an employer will need to consider what level of alcohol will trigger a
positive result. Different levels may be tolerable in different jobs. Also, it
is advisable to supply employees with information such as the units of alcohol
contained in certain drinks and the impact a "heavy" night may have
on a test the next day.
Drugs are a more difficult area. Generally, employers will test for specific
types of drug but the difficulty with this – and the Information Commissioner
has specifically highlighted this issue – is that some drugs, such as cannabis,
can remain in the system for several weeks. A "positive" result might
not therefore be evidence of an impairment.
Prescription drugs may also impair performance so it may be reasonable for
these to be included in any tests. Certainly, employers need to address how
these will be dealt with: some prescription drugs that contain codeine can be
picked up in tests for opiates. One answer is to ask employees to pre-declare
prescription drugs.
Any other information discovered during the tests such as evidence of
pregnancy should be disregarded.
Employers also need to be alert to extenuating circumstances that may lead
to "positive" results. A US employee reportedly sued her employer
recently when she was dismissed following a positive for morphine: she had
eaten a poppy seed muffin earlier in the day. Spiking of drinks and food has
also been raised as a defence to "positive" results. Employers will
need to investigate carefully such explanations to avoid allegations of unfair
dismissal. However, tribunals generally have taken a robust approach to excuses
put forward by applicants. For example, two employees who were dismissed on the
basis that they tested positive for cannabis had their unfair dismissal claim
rejected when they sought to argue they had been the victims of passive
smoking.
Employers will need to think carefully about how they deal with the results
of any testing in the context of their overall policy on alcohol/drugs.
Increasingly, organisations are distinguishing between dependency, which is
treated as an ill-health issue out of both legal and employee relations
considerations, and "one-off" problems which are dealt with through
the disciplinary process. But while employers tend to adopt a more flexible
approach to alcohol, many adopt a zero-tolerance approach to drugs. If this is
the case, it must be clearly spelt out to employees before testing is
introduced. Similarly, if refusal to submit to a test will lead to dismissal,
this should be made clear.
Integrity of the testing regime
Tests open to challenge because they have not been administered stringently
will be difficult to rely on when taking action against an employee. Tests will
generally be conducted by an outside professional organisation but it is
important to ascertain how the organisation guarantees the integrity of tests
such as a chain of custody system which ensures the samples have come from the
correct person.
Consent
Finally, an employer will need the employee’s agreement to test and to
process the results (which will constitute "sensitive" personal data
under the DPA).
For new employees, this is fairly straightforward because employment can be
made subject to consent. However, for existing employees, any unilateral
attempt to change terms and conditions will be ineffective. If agreement is not
forthcoming, you may want to consider giving notice to employees under the
terms of their existing contract and offering them re-employment on the new
terms, in which case you risk unfair dismissal claims. The success or otherwise
of such claims will depend on the level of consultation prior to dismissal and
the reasons for implementing the testing regime.
Unfortunately, obtaining consent by way of contract is not the end of the
story. In most cases, an employer will also need to obtain specific consent
from each employee at the time the test is taken. Most tests involve taking a
sample, which is likely to amount to assault in the absence of freely given
consent.
The success of any testing regime will therefore depend largely on all
employees understanding the reasons behind it and buying into it, so consulting
with employees and any union representatives is likely to be a key factor. n
Louise Reohr is a solicitor at Lewis Silkin
What the draft Data Protection Code says
– Drugs and alcohol testing should be
conducted only if justified on safety grounds.
– Drugs tests should not be used merely to find evidence of
illegal drugs use.
– Even where testing is justified, employers should consider
whether a drugs test is capable of providing real evidence of impairment and
investigate less intrusive alternatives.
– In areas other than the most safety-critical, drugs testing
is only likely to be justified if there is reasonable suspicion of drug use.
– Where alcohol and drugs testing cannot be justified on safety
grounds, it should only be introduced if part of a voluntary programme for the
detection and treatment of substance abuse
– Covert testing should only be considered in the detection of
a serious crime where the police are involved.
How Huntsman Tioxide tests its
staff
Chemicals company Huntsman Tioxide
introduced random alcohol testing this year. Any of its 600 employees can be
breathalysed at any time at work and if found to be over the drink drive limit,
are referred to HR.
The company has used the drink-drive limit as the guide to
whether a member of staff is safe to be working. HR manager Lynn Ross believes
that the company could have been accused of breaching employees’ privacy rights
(under article 8 of the European Convention on Human Rights) if a policy of no
drink at work had been adopted.
"If the law says you can have a couple of drinks and still
legally drive then you can also work. If the law changes for the drink-drive
limit then we’ll change our policy," says Ross.
Staff concerns have been overcome by adopting an open approach
to the new policy’s development and implementation, and by ensuring that it
applies to everyone including the board.
The company set up a committee that included union
representatives and staff to drive the project forward. HR also distributed a
booklet for staff with details about alcohol measurement and the effects of
drink and drug abuse.
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The policy took one year to develop even though drug and
alcohol testing was already used in pre-employment screening. Huntsman Tioxide
ran an amnesty period for three months when staff could use a breathalyser on
themselves to find out if they were over the limit.
Ross said, "The success of implementation varies in my
experience and there are many companies struggling with buy-in. How you manage
its implementation is very important."
