Legal Q&A: Alcohol and drug testing

Testing employees for alcohol and drugs is capturing the interest of an increasing number of employers as drugs and alcohol become more prevalent in the workplace. One in three men and one in five women drink over the recommended limit, while nearly one-third of workers under 30 have taken drugs in the past 12 months, government statistics show. However, employers must tread carefully in this legal minefield. Drug and alcohol testing are highly controversial and raise issues of privacy and human rights. What steps can an employer take to monitor its employees?

Q Can an employer undertake random drug or alcohol testing of all employees?

A The extent to which employers can require employees to undertake random drug or alcohol testing is limited, even where there is a right to test the employee in their contract of employment. An unreasonable request to take a test will result in a breach of the implied duty of mutual trust and confidence. This could lead to an employee successfully claiming unfair constructive dismissal. Obtaining samples without consent could, in addition, constitute the criminal offences of assault or battery. In the absence of factors indicating that the employee is using, or is affected by, alcohol or drugs at work, the employer will have to ensure it can justify any testing it wishes to carry out.

Q What should a drug and alcohol policy include?

A A drugs and alcohol policy should contain a clear outline of the aims and purposes of the policy. It should explain who is covered by the policy and whether a particular group (eg, employees carrying out safety-critical work) is subject to tighter restrictions. The policy should clearly set out the rules and procedures around alcohol and drug use, including definitions of what constitutes misuse and the disciplinary action that may be taken. It should also set out an overview of any testing process, including an explanation of why tests are carried out, who administers them and what happens if a test proves positive.

Q Are there any data protection issues arising from drug and alcohol testing?

A Information about an employee’s health is sensitive personal data. Employers must, therefore, ensure they adhere to the Information Commissioner’s Code of Practice when carrying out drug or alcohol testing to avoid breaching the Data Protection Act 1998.

Q Can an employer immediately dismiss someone if they test positive for drugs or alcohol?

A Employers should always ensure that they follow the statutory disciplinary procedures, together with any of their own policies and procedures before taking a decision to dismiss. Failure to follow the statutory procedures will result in the dismissal being automatically unfair. Employers should be careful not to pre-judge the situation and should allow the employee to state their case. The employee may claim to be suffering from an addiction. In this case, employers would be prudent to treat the employee as if they are suffering from an illness. This means, for example, that employers should take reasonable steps to determine the employee’s chances of recovery (eg, by seeking medical evidence), allow a reasonable period of time for recovery and consider whether it is appropriate to assist treatment, for example by contributing towards the cost of counselling.

Q Will an employee be ‘disabled’ for the purposes of the Disability Discrimination Act 1995 (DDA) if they are addicted to drugs or alcohol?

A Alcohol and drug addictions per se are specifically excluded from the DDA. However, an employee who suffers ill-health (eg, depression) as a result of their addiction may well be deemed to have a disability for the purposes of the DDA. The test is whether the ill-health constitutes a physical or mental impairment that has a substantial and long-term adverse effect on the employee’s ability to carry out normal day-to-day activities.