Hopefully this is one policy you don’t need to use regularly but it is worth checking it is up to date.
Firstly, you may cover alcohol and illegal drugs in your policy but does it extend to so called legal highs (these were actually made illegal by the Psychoactive Substances Act 2016) and misuse of legal/over the counter drugs? Clearly policies designed before the 2016 law will need updating.
Secondly, you may need to link your policy to your whistleblowing policy and make it clear that those who raise concerns about misuse by colleagues will not be subject to acts of victimisation, and to encourage people to come forward and raise concerns. Those who do, will be protected on numerous grounds (whistleblowing, health and safety).
It may not be appropriate for all employers to include a drug screening procedure (where they don’t have staff who drive or operate machinery or where working under the influence of drugs could cause injury to employees, colleagues or third parties, or could seriously damage the employer’s business). Where an employer chooses to, they will not be able to require staff to submit to drug testing without their consent. Provision can be included in contracts, and withholding consent should be stated to be a misconduct offence (just as a positive drugs test would be), either in the contract, or in a disciplinary procedure or other policy.
The Information Commissioner’s Office (ICO) states in its guidance, “Information about workers’ health: What if we use medical examinations and drugs and alcohol testing?” that drugs and alcohol testing should be designed to ensure safety at work (for example, due to the nature of a worker’s role rather than to reveal the illegal use of substances in workers’ private lives).
However, testing to detect illegal use may, exceptionally, be justified where such use would either breach the worker’s contract or the employer’s disciplinary rules, or where it would cause serious damage to the employer’s business.
The ICO provides the following guidelines:
- Before it undertakes any drug or alcohol testing, the employer should carry out a data protection impact assessment (DPIA) to help document its purposes, justifications and safeguards in undertaking testing, and how it intends to comply with its data protection obligations.
- Where performance or behavioural issues are potentially related to drug or alcohol use, it may be possible to address them through the employer’s other policies rather than through testing.
- The employer should consider the efficacy of the testing technique it proposes to use and whether it can provide real evidence of impairment, or potential impairment, that would put the safety of others at risk. Testing should be limited to those substances, and the extent of exposure that would have a significant bearing on the purpose(s) for which testing is conducted. Have you taken advice on this from your testing provider?
- Workers should be told what they are being tested for, the frequency of testing, and the consequences of the results.
- Testing is more likely to be justified after an incident where the worker’s conduct gives rise to a reasonable suspicion of drug or alcohol use.
- Other than in the most safety critical areas, regular drug testing is unlikely to be justified unless there is a reasonable suspicion of drug use that has an impact on safety.
- Random testing should be limited to selecting from those workers who are involved in safety-critical roles that the employer considers require testing, rather than selecting from all workers.
- The employer should ensure that random testing is carried out in a genuinely random way (it is generally unfair and deceptive to lead workers to believe that random testing is being carried out if the employer is, in fact, using other criteria).
- Testing should be undertaken by a professional service, with qualified staff, that meets appropriate standards. Workers should have access to a duplicate of any sample taken, to enable them to have it independently analysed to check the accuracy of the results. The employer should not assume that the tests are infallible and should be prepared to deal properly with any disputes arising from their use.
- If you discuss the result of tests – there is specific language you should use – rather than positive or negative result you should talk about ‘non-negative’ results.
We can link you with organisations that will organise fair testing processes for you. Please get in touch if you would like more details.
Anna Denton-Jones
Refreshing Law
