Q One of our managers likes a drink or two, but there are rumours he is taking drugs as well. So far, his performance seems unaffected. Should I interfere?
A Yes. According to a recent TUC report, around 14.8 million working days are lost each year because of alcohol abuse, at a cost to the UK economy of £2.3bn a year. Excessive drinking is also a factor in around 25 per cent of industrial accidents, while the use of recreational drugs an issue too.
Under health and safety legislation, you have a duty to ensure, as far as is reasonably practicable, the health, safety and welfare of your employees. If you knowingly allow the manager to work under the influence of alcohol or drugs and his behaviour places other employees or third parties at risk, you could be prosecuted.
Q Should I tell the manager he has to take an alcohol and drugs test?
A No. You have no right to test for alcohol or drugs without the manager’s consent, and if you forced him to take a test, you could prompt a number of employment-related claims as well as a charge of criminal assault.
Testing often involves collecting blood or urine samples and raises significant issues of privacy. Your employees have the right to respect for private and family life under Article 8 of the Human Rights Act 1998.
This is a qualified right, but it can be overridden in certain circumstances, for example, where it is in the interests of public safety, or the prevention of disorder or crime.
This issue was considered in O’Flynn v Airlinks the Airport Coach Company Limited. O’Flynn was involved in transporting the public around airports. Airlinks’ alcohol and drugs policy provided for the random screening of 10 per cent of the workforce each year, and a positive test would result in dismissal.
O’Flynn tested positive for cannabis. Her subsequent dismissal for gross misconduct was held to be fair, a decision upheld by the EAT. The key factor in this case was O’ Flynn’s role in public safety.
Q Is random drug testing more straightforward?
A Not necessarily. If you intend to introduce random testing, you should expressly provide for this in the employment contract. This will still not permit testing against an employee’s will but would place the employee in breach of contract if they refused to be tested.
Even so, because of the human rights implications, you must still justify why random testing is necessary. You need to remember that alcohol and drugs testing should be about assessing an employee’s competency to carry out their job, or identifying whether the behaviour constitutes a health and safety risk, rather than a means of controlling off-duty behaviour.
If you decide to introduce random testing, you must ensure that it is carried out by an accredited laboratory, and that all of your employees are informed of the possible consequences of any positive test results.
Q Is it true there are data protection implications?
A Yes. The Data Protection Act 1998 will apply if the employees’ test results are retained as part of a relevant filing or computer-based system. Moreover, the test results will constitute sensitive personal data and employees’ specific consent must be obtained for the processing and retention of such data.
The Information Commissioner has issued four parts to a Code of Practice and in the context of alcohol and drugs testing, part two on record management and part four on Information about Workers’ Health need to be considered.
Part four (currently still in draft but expected to be finalised this summer) provides best practice recommendations on testing. Generally, testing should be confined to staff in safety critical roles such as drivers, pilots or machine operators, or where there is a reasonable suspicion that the employee’s use of alcohol or drugs has an impact on the health and safety of others.
Q It sounds like a minefield. Is it really worth having a policy?
A Absolutely. An alcohol and drugs policy should address such issues as confidentiality and the circumstances when testing will take place – for example, at random, routinely, or only in response to accidents. It should also state what disciplinary sanctions will apply.
You must communicate the policy across the business, and your HR managers should attend relevant training to help them identify problems as they arise.