Category: Duty of Care

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Duty of Care Employment Law Employment Rights Act 1996 Health and Safety HR Unfair Dismissal

Guest Blog | UK workplace drug testing

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How to avoid unfair dismissal pitfalls

Ensuring a safe and productive workplace is a fundamental responsibility for employers, sitting alongside statutory duties under the Health and Safety at Work etc. Act 1974.

For many organisations, this includes a Drugs and Alcohol Policy supported by workplace testing. When carried out correctly, testing protects employees and reduces risk. However, when done hastily, employers expose themselves to significant legal risk.

At Forensic Resources Ltd (FRL), we frequently assist HR professionals and employment lawyers in navigating this delicate area. The biggest challenge? A misunderstanding of what tests actually prove — and when it is legally safe to act.

Point of Care Testing (POCT): Useful, but presumptive only

Many employers favour Point of Care Tests (POCTs) — quick, onsite screening tests (saliva or urine) that give an immediate indication of substance presence.

The benefits of POCT:

  • Speed: Immediate results.
  • Cost-Effective: Relatively inexpensive.
  • Risk Management: Supports immediate decisions, such as temporarily removing an employee from a safety-critical role.

The critical limitation:

POCT results are presumptive only. This is a position recognised within UK forensic toxicology standards. They cannot confirm:

  1. If the reading is analytically accurate.
  2. If the substance is an illicit drug or a lawful prescription medication.
  3. If “cross-reactivity” has produced a false positive.

Crucial Distinction: At this stage, results should be described as “non-negative,” not “positive.” No employee should ever be dismissed based solely on a POCT result.

Why laboratory confirmation is essential

A non-negative POCT result is only the first step. Employers must send the sample to an accredited forensic toxicology laboratory for confirmatory analysis.

In the UK, laboratories should be accredited by UKAS to ISO/IEC 17025, the recognised standard for testing competence. Confirmatory analysis uses validated techniques like Gas Chromatography–Mass Spectrometry (GC-MS) to:

  • Identify the exact drug or metabolite present.
  • Quantify the levels detected.
  • Eliminate false positives.
  • Produce results suitable for disciplinary and tribunal proceedings.

Skipping this stage undermines procedural fairness and leaves the employer legally vulnerable.

The “medication” factor: understanding context

A confirmed finding does not automatically indicate misconduct. Employers must consider if the drug detected is a metabolite of lawful medication.

  • The Codeine Example: Codeine is a lawful medication that metabolises into morphine. A morphine finding may reflect legitimate codeine use rather than illicit opioid consumption.
  • Other Triggers: Antidepressants, ADHD medications, and sleep aids can legitimately influence toxicology results.

If HR teams do not understand the results, they should seek a formal toxicology report or pharmacological opinion to determine whether the findings indicate impairment rather than mere presence.

A fair and defensible process: 7 steps for employers

To minimise risk and ensure a fair investigation under UK employment law, follow this structured approach:

  • Maintain a Clear Policy: Reflect HSE and GOV.UK guidance regarding consent and proportionality.
  • Use Accredited Laboratories: Ensure results are scientifically and legally defensible.
  • Ensure Chain of Custody: Maintain sample integrity from collection to reporting.
  • Wait for Confirmation: Never discipline based on POCT results alone.
  • Seek Expert Interpretation: Understand why a result occurred.
  • Consider Mitigation: Evaluate medical explanations as part of a fair investigation.
  • Document Everything: Build a strong evidence trail for potential tribunals.

Why being “test-ready” matters

Workplace drug testing is time-critical. Drugs remain detectable for a finite period; delays in sample collection can result in the permanent loss of evidence.

Furthermore, delays have cost implications, such as prolonged suspension on full pay. Being pre-registered with a laboratory provider allows for same-day sample collection and fast-track results.

About Forensic Resources Ltd (FRL)

A premier forensic science consultancy firm, FRL specialises in providing expert witness services to legal teams and insurance firms. If you’re implementing or reviewing a drug testing process — or if you have a live case requiring expert input — we’re here to help with clear, scientifically robust guidance every step of the way.

029 2267 6699

info@forensicresources.co.uk

GET IN TOUCH

Abi Carter
Forensic Resources Ltd

Key takeaways for HR professionals (FAQs)

Can I dismiss an employee based on an onsite “Instant” test?

No. HSE guidance and UK employment law principles require laboratory confirmation (GC-MS/LC-MS) before drawing conclusions of misconduct.

What is the difference between “Non-Negative” and “Positive”?

A “non-negative” is an unconfirmed screening result. A “positive” is a legally defensible result confirmed by a UKAS-accredited laboratory.

Does a positive result always mean impairment?

Not necessarily. Interpretation by a toxicologist is required to differentiate between illicit use, historical use, and lawful prescription medication.

CONTACT US

We’re here to help with any questions or concerns you may have. Whether you need expert advice or would like an initial conversation about our services, pricing, or the options available, please don’t hesitate to get in touch. At Refreshing Law, what sets us apart from other law firms is that you’ll get to speak to an experienced employment lawyer right from the very first call.

02920 599 993

07737 055 584

lreynolds@refreshinglawltd.co.uk

GET IN TOUCH

Lousha Reynolds
Refreshing Law

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Disability Duty of Care Employment Law Equality Act 2010 Health and Safety HR Lousha Reynolds Mental Health Neurodiversity Reasonable Adjustments Risk Assessment Sick Pay Stress

Stress at Work: More than just a bad day

Woman with head in her hands leans over a desk with a laptop in front of her

As we mark Stress Awareness Week 2026, we’re looking at the legal framework that governs mental health in the UK workplace.

Stress isn’t just a HR issue. It’s a significant legal responsibility. Whether you’re managing a team or navigating your own workload, understanding the boundaries of the law is essential for a healthy, compliant work environment.

1. The legal duty of care

Under the Health and Safety at Work etc. Act 1974, employers have a statutory duty to ensure, so far as is reasonably practicable, the health, safety, and welfare of their employees. This isn’t limited to hard hats and trip hazards. It includes mental wellbeing, too.

  • Risk Assessments: Just as you’d assess the dangers of a faulty wire, you must assess the risk of work-related stress.
  • The Management Standards: The HSE (Health and Safety Executive) outlines six key areas that, if not managed, lead to poor health and reduced productivity: demands, control, support, relationships, role, and change.

2. When stress becomes a disability

While stress itself isn’t a disability, the effects of prolonged stress, such as clinical depression or anxiety disorders, often meet the criteria under the Equality Act 2010.

An employee is considered disabled if they have a physical or mental impairment that has a “substantial and long-term adverse effect” on their ability to carry out normal day-to-day activities.

What this means for employers:

  • If stress triggers a disability, you have a legal obligation to make reasonable adjustments. This might include:
    • Flexible working hours or “soft” start times.
    • Redistributing certain tasks to other team members.
    • Providing a quieter workspace or more frequent breaks.

3. Avoiding a personal injury claim

If an employer is aware (or ought to have been aware) that an employee is struggling and fails to act, they risk a claim for negligence. For a claim to succeed, the psychiatric injury must have been “reasonably foreseeable.”

The Red Flag Rule: If an employee tells you they’re struggling, or if their performance suddenly dips alongside signs of burnout, the clock starts ticking. Ignorance is rarely a valid legal defence once the signs are visible.

4. Practical steps for Stress Awareness Week

To stay on the right side of the law (and keep your team happy), consider these three actions:

ActionPurpose
Wellness Action Plans (WAPs)A proactive tool for employees to share what helps them stay well.
Training for ManagersEnsuring supervisors can spot signs of burnout before it becomes a grievance.
Open CommunicationReducing the stigma so employees feel safe raising issues early.

Work-related stress is often a symptom of systemic issues rather than individual weakness. By treating mental health with the same rigour as physical safety, UK businesses can avoid costly employment tribunals and, more importantly, foster a culture where people actually want to work. This year’s campaign, led by the Stress Management Society, focuses on the theme #BeTheChange, encouraging small, consistent, and positive actions. We think that’s a great place to start.

CONTACT US

We’re here to help with any questions or concerns you may have. Whether you need expert advice or would like an initial conversation about our services, pricing, or the options available, please don’t hesitate to get in touch. At Refreshing Law, what sets us apart from other law firms is that you’ll get to speak to an experienced employment lawyer right from the very first call.

02920 599 993

07737 055 584

lreynolds@refreshinglawltd.co.uk

GET IN TOUCH

Lousha Reynolds
Refreshing Law

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Anna Denton-Jones Confidentiality Duty of Care Employment Law Fraud Procedural Fairness Video

Video | Breach of confidence and procedural fairness

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Our latest video is available to view on the Refreshing Law YouTube channel – please click here to watch the video in which Anna discusses a recent case (Woodhead v WTTV Ltd) that raises issues around the employer’s duty of care and also procedural fairness in employment cases.

Anna Denton-Jones
Refreshing Law

 

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Anna Denton-Jones Duty of Care Employment Law Health and Safety

Have you revamped your substance misuse policy recently?

Legal contract papers

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

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Anna Denton-Jones Duty of Care Employment Law Video

Video | What happens if an employee is arrested?

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Our latest video is available to view on the Refreshing Law YouTube channel – please click here to watch the video where Anna discusses the issues that can arise and may need to be considered when an employee is accused of a criminal offence.

Anna Denton-Jones
Refreshing Law

 

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Anna Denton-Jones Bullying and Harassment Conflict Duty of Care Employment Law Harassment

Video | Anti-bullying week 2023

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Our latest video is available to view on the Refreshing Law YouTube channel — please click here to watch the video that Anna has recorded to mark Anti-Bullying Week 2023. Anna discusses her thoughts on, and the various issues around bullying in the workplace.

Anna Denton-Jones
Refreshing Law

 

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Anna Denton-Jones Disability Discrimination Law Diversity Duty of Care Employment Law Employment Rights Act 1996 Equality Act 2010 Offer of Employment Reasonable Adjustments Recruitment

Employers making reasonable adjustments in recruitment

View of the City of London at sunset

An applicant for a job who had dyspraxia asked to make an oral job application instead of filling the online form that the employer required. The employer emailed him with repeated requests asking him to explain what his difficulty was with the online process. The individual had difficulty with written communication, indeed that was the reason behind his request in the first place, so he also struggled to deal with these emails. The employer ought to have realised this as they knew about the dyspraxia. The Tribunal ruled that a reasonable employer would have phoned the applicant in order to understand their situation more fully.

A factual quirk of this case is that the applicant was seeking to return to the same team, with the job applications being judged by the same line manager who had dismissed him 8 months previously (failed probation). Understandably, that may have been behind the employer’s reluctance to engage with the individual but what you don’t get to know is to what extent they knew about the dyspraxia during the probationary period and what reasonable adjustments were made at that stage to assist the individual in order to level the playing field and put them into a position where they might have been able to pass the probationary period.

This case illustrates the importance of making reasonable adjustments not only for your own employees such as probationers but for all job applicants. It also illustrates how sometimes the reasonable adjustment is something very cheap and easy to do (a phone call instead of an email) and how as soon as the employer has knowledge there is a disability they should be making adjustments not waiting for the employee to ask.

Anna Denton-Jones
Refreshing Law

 

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Duty of Care Employment Law Health Conditions HR Stress

Guest Blog | How HR can take a trauma-informed approach to support employees

Platfform Wellbeing's HR support services

All businesses have a duty of care to their employees and safeguarding their mental health is a fundamental part of this. April is National Stress Awareness Month and a time to reflect on the negative impact of stress in the workplace.

We all know that stress is one of the most common causes of long-term work absence in the UK but how much do HR professionals understand about the impact that trauma can have as a contributory factor to stress and work burnout?

It’s important to understand what psychological trauma is and how it can have a significant impact on an individual’s mental and physical health. Trauma-informed care is an approach that recognises the impact of trauma on individuals and seeks to create a safe and supportive environment for healing.

So how can HR take a trauma-informed approach to supporting employees through work stress and burnout?

Create a safe and supportive environment

Creating a safe and supportive environment is an essential part of a trauma-informed approach. This includes:

  • Establishing trust: Building trust with employees is essential. This can be achieved through open communication, active listening, and a non-judgmental approach.

  • Fostering a sense of safety: Employees need to feel physically and emotionally safe in the workplace. HR can ensure that the workplace is free from harassment, discrimination, and other forms of violence.

  • Providing choice and control: Employees need to feel that they have choices and control over their work environment. HR can provide employees with opportunities to give feedback, participate in decision-making, and have a sense of autonomy.

  • Empowering employees: Empowering employees to take control of their work environment and manage their stress can help them feel more confident and reduce the risk of burnout.

Offer resources and support

HR can offer resources and support to help employees manage their work stress and prevent burnout. This may include:


  • Counselling services: Counselling services can help employees manage their stress and cope with trauma.

  • Training and education: Providing employees with training and education on stress management and mental health can help them understand the impact of stress and develop coping strategies.

  • Flexible work arrangements: Offering flexible work arrangements such as hybrid or flexible hours can help employees manage their workload and reduce stress.

  • Peer support: Providing employees with peer support networks can help them feel connected and supported in the workplace.

In summary, taking a trauma-informed approach to supporting employees through work stress and burnout is essential for promoting employee wellbeing and preventing burnout.

HR can create a safe and supportive environment, offer resources and support, and empower employees to take control of their work environment. By doing so, HR can help employees manage stress and prevent burnout, leading to a more productive and healthier workforce.

If you would like to learn more about becoming a trauma-informed organisation, you can find further information on the Platfform Wellbeing website.

Platfform Wellbeing
Platfform Wellbeing is a commercial training, workplace wellbeing and counselling service aimed at organisations across the private, public and third sector. It offers kind, compassionate responses at times of distress and supporting organisations with creating cultures and teams than enable people to thrive. We are part of Platfform, a mental health and social change charity.

 

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Anna Denton-Jones Duty of Care Employment Law Employment Rights Act 1996 HR Mental Health Pay Sick Pay Stress

Are you entitled to withhold SSP?

View of the City of London at sunset

You’ve probably noticed wording in your sickness policy that makes it clear if employees don’t comply with your procedure, they risk the payment of Statutory Sick Pay (SSP).

It is not open to an employer to withhold SSP where the employee provides medical evidence from their GP late. For example, you may require the certificate to be given to you on day 8 of absence, and the employee might not get around to giving you a certificate until day 10.

An employer is allowed to not pay SSP if the employee has failed to notify them of the absence, and there is no good reason to cause the delay in notification. For example, the employee is supposed to notify you of their absence on the first day of incapacity – if they didn’t notify you and essentially were absent without leave for the first few days and told you on day 8, then potentially Section 156(2)(a) Social Security Contributions and Benefits Act 1992 applies. So, for example, if the employee had gone AWOL effectively for the first week and then telephoned in, the employer is entitled to withhold for the duration of the delay.

Employers may introduce something more onerous as a matter of contract. For example, that the employee has to report in sick by a particular time on the first day of their absence and thereafter at regular intervals. That cannot override the statutory scheme when it comes to SSP but if more generous contractual sick pay is available, such as payment for the waiting days when SSP doesn’t apply or payment of full pay or something more than SSP, then the employer will be able to follow what they have said in their contract and withhold the extra payment if the employee has not complied with the rules.

Under SSP rules, HMRC in its www.gov.uk page ‘Statutory Sick Pay: employee fitness to work’, states that “if an employer decides to stop payment of SSP, they should explain their decision to the employee”. The employee will be entitled to a written statement from the employer and can seek a formal decision on their entitlement from HMRC Statutory Disputes Payment team. You might like to refer to the ‘Stop Payment of SSP Section’ of that Guidance. There is an example letter to notify the employee that you will not be paying them.

There will be occasions where the employer has real reasons to believe that the person may not have been unfit for work. For example, they may have requested annual leave and that request has been rejected, so the individual then phones in sick. Clearly the employer would have to do as much investigation as they possibly could around the circumstances. For example, if the individual provides a doctors fit note, HMRC advises that that should be accepted as conclusive proof of incapacity for SSP purposes, even if there is very strong evidence to the contrary. The employer might need to get their own medical advice or to ask HMRC to arrange for the employee to be examined by the medical services team. Clearly that only works in the case of a health condition that is likely to be ongoing.

It might be possible to ask, for example, a GP who has provided a backdated sick note when their consultation with the individual was and providing evidence timing that the employee has been covering up them being perfectly well on the days in question. Evidence as to their activity from social media may also be relevant, eg. photographs of the employee swanning around Spain when the employee told the employer they were in bed and that they were so unwell that they couldn’t get up.

Anna Denton-Jones
Refreshing Law

 

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Anna Denton-Jones COVID-19 Disability Duty of Care Employment Law Employment Rights Act 1996 Equality Act 2010 Health and Safety Health Conditions Sick Pay

Long COVID was a disability

Royal Courts of Justice, London

The first Employment Tribunal case to determine that an employee with long COVID was disabled within the meaning of Section 6 of the Equality Act 2010 has taken place. The employee was a caretaker and he tested positive for COVID-19 in November 2020. Initially, he was experiencing mild symptoms. After isolating, he developed severe headaches and fatigue that were so severe that after simple acts like having a shower or getting dressed, he had to lie down and recover. He struggled to stand for long periods. He couldn’t undertake household activities like cooking, ironing or shopping. He experienced joint pain, loss of appetite, a reduced ability to concentrate and difficulty sleeping. This all led to him feeling unable to socialise. His symptoms were unpredictable: he would experience an improvement, only to suffer from fatigue and exhaustion again.

In January 2022, so after a few months, his health began to improve but the sleep disruption and fatigue continued to affect his day to day activities. His notes referred to long COVID Post Viral Fatigue Syndrome. The employer obtained occupational health reports which both indicated that he was fit to return to work with a view that the disability provisions of the Equality Act were unlikely to apply. However, due to his fatigue levels and the fact that he didn’t return to work, in August 2021 because of ill-health, his employer dismissed him when he had been absent from work for 9 months.

The Tribunal has had to determine the preliminary issue of whether he was disabled at the relevant time. It has concluded that he was and that he wasn’t exaggerating his symptoms and had a physical impairment (The Post-Viral Fatigue Syndrome caused by COVID-19). The Judge found it relevant that there was no incentive for him to remain off work when he had exhausted his sick pay. They found that his symptoms were consistent with the June 2021 TUC Report into long COVID and in particular, the fluctuating nature of those symptoms. The physical impairment had an adverse effect on his ability to carry out normal day to day activities and they found that the effect was more than minor or trivial and that it was long term because it could well last for a period of 12 months when viewed from the dismissal date. In particular, they noted that the employer themselves was of the view that there was no date in sight where a return to work seemed likely.

Clearly this case does not mean that the employee will be successful in his claims of disability discrimination – at this stage he has just got over the first hurdle of proving that he had a disability. The Tribunal will have to go onto consider whether or not the dismissal was justified in all the circumstances. In doing that, they are particularly likely to take into account to what extent reasonable adjustments were explored and the process that was followed around the dismissal. This might include considering alternative employment.

Indeed, in another case, the Employment Appeal Tribunal has considered Section 15 of the Equality Act which you will recall is ‘discrimination arising from a disability’ in connection with dismissal following a period of absence. When Section 15 is raised, the Tribunal is going to be considering whether dismissal was a ‘proportionate means of achieving a legitimate aim’ of the employer. That case reminds us not to act prematurely in dismissing a disabled employee – the employer had grudgingly adopted a trial in an alternative location but failed to implement the trial reasonably or properly evaluate its success before their decision to dismiss. Where there was such an opportunity of work from a different location, a Judge is likely to find that that alternative was a less discriminatory alternative to dismissal that the employer should have taken. Clearly that wouldn’t have helped the employee with long COVID as he wasn’t able to work at all at the stage he was dismissed.

Anna Denton-Jones
Refreshing Law