Weekly dilemma – What are the legal implications of testing staff for drugs or alcohol?

There has been a significant rise in the number of employers testing for alcohol and drug abuse in the workplace, according to a survey in the national press. I am concerned that one of my employees is under the influence of alcohol or drugs during work time. What are the legal implications if I were to carry out alcohol/drug testing?

You should first consider whether a test is, in fact, necessary. If, for instance, you have reasonable grounds to suspect an employee is in possession or under the influence of drink or drugs at work, then a search of the employee or their possessions might be sufficient. However, be aware that carrying out searches also has legal implications.

If you conclude that a test is required, it is essential that your contract of employment gives you the right to request the employee to undergo the test. You should also pay close attention to the terms of the Information Commissioner’s Code of Practice, as information derived from such tests is sensitive personal data for the purpose of the Data Protection Act.

Drug testing should only be carried out as part of a post-incident investigation where there is evidence that the worker’s conduct has had some bearing on the incident.

To meet the Data Protection law requirements of adequacy and accuracy, it may be necessary to use a professional service with qualified staff to carry out the testing and interpret the results on your behalf.

You should ask yourself if obtaining information through drug testing is justified on health and safety grounds. As an employer, your concern will probably be to detect drug or alcohol use that places other employees at risk, but remember, this can arise from drugs that are legal as well as illegal. Tests should not generally be used merely to find evidence of the use of illegal drugs.

Will Clayton, employment law partner,
Hill Dickinson


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