An employee who uses illegal drugs in the workplace will be committing a criminal offence, as will the employer who knowingly permits this. However, where an employee uses drugs outside of work, the situation is less straightforward. The extent to which an employer will be justified in taking any action relating to an employee’s activities outside work will depend on the facts of the case and myriad legal considerations, summarised below.
Health and safety
Under the Health and Safety at Work Act 1974, employers have a general duty to ensure, as far as reasonably practicable, employees’ health, safety and welfare at work. If an employee is under the influence of drugs at work and places himself or other employees at risk as a result, the employer could be liable to prosecution if it allows the employee to continue working. The risk presented by an employee who might be under the influence of drugs will depend on the role performed and the drug concerned. Employers will have a much stronger case for justifying drug testing in cases where any impairment of employee performance would compromise the safety of the employee himself, other employees, or service users (such as in the transport industry).
Particular care should be taken, in carrying out drug testing, not to force employees to provide a sample, as to do so could constitute criminal assault and battery.
Right to a private life
Even where drug testing is carried out for safety reasons, the extent to which it confers real safety benefits has to be balanced against the employee’s right to privacy. Article 8 of the Human Rights Act 1998 (HRA) states that everyone has the right to respect for his or her private and family life. Any infringement of that right must be a proportionate means of achieving a legitimate aim. Although private-sector employers are not directly bound to act in accordance with the HRA (“public authorities” are bound), they should still be aware of its requirements, because courts and tribunals are required to read and give effect to legislation, so far as possible, in accordance with the HRA.
Information regarding an individual’s health, which would include drug use, is defined as “sensitive personal data” under the Data Protection Act 1998 (DPA). As a result, any drug testing and the storage and treatment of any personal data gathered as a result of the testing must, in addition to meeting normal data protection requirements, meet the higher threshold that applies to processing of sensitive personal data. In terms of this higher threshold, the DPA provides, specifically, that sensitive personal data can only be processed if at least one of the conditions in Schedule 3 of the DPA is met, which includes the employee having given explicit consent to the processing.
The Information Commissioner’s recommendations in the Employment Practices Code should also be considered.
Dismissals based on a positive drugs test could, depending on the circumstances, be covered by one of the potentially fair dismissal reasons set out in employment legislation. Before dismissing an employee for drug use, employers should undertake a proper consideration of the wider circumstances and any mitigating factors, and should also ensure that a proper procedure has been followed.
Having a clear policy (which employees are made aware of) that a positive test result will lead to summary dismissal, gaining employee consent to drug testing, and ensuring there is clear evidence that drug (or alcohol) use has impaired the employee’s performance at work and/or put the safety of colleagues or members of the public at risk, should reduce the risk of an unfair dismissal finding.
Implementing a drug-testing programme
Employers who wish to implement a drug testing programme should ensure that:
1. They seek legal advice and ensure that all relevant legislative requirements are fully considered and met.
2. A documented risk/impact assessment is carried out.
3. Employees consent, ideally contractually, to every testing procedure.
4. Testing is carried out as part of a comprehensive drug (and alcohol) policy, which employees are made aware of.
5. There is a procedure for identifying and handling incorrect positive test results and positive tests for prescription drugs.
6. Any laboratory or agent that conducts an analysis on the employer’s behalf is accredited by the UK Accreditation Services and complies with the International Standard for Laboratories (ISO 17025).
Kate Minett and Fudia Smartt work in the employment department at Russell-Cooke Solicitors