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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

Categories
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 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

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Anna Denton-Jones Communication Duty of Care Employment Law Health and Safety Health Conditions Mental Health Risk Assessment Stress

What to do when you’re worried about someone — Suicide awareness

View of the City of London at sunset

Friday, 10th September was Suicide Awareness Day. By coincidence I ended up having the same conversation twice with two different organisations. In both cases, the employer had an employee who was on long term sick and where a pattern of contact with the employer had been established but they felt that something had changed. The lack of contact they were now experiencing was out character from the employee. In one case the employee had shared that they were having negative thoughts and in the other the employer was just concerned.

In such a case where efforts to speak with the employee are not fruitful, if you have any concerns then I recommend you act on them rather than ignore them. Our intuition is there for a reason.

The first port of call might be the next of kin that the individual has left with you. You don’t need to get into discussing any details about the employee or their absence, their health or anything like that: you can just remind the next of kin that they have been appointed by the employee as the next of kin and that you are worried about the employee because there has been a change in behaviour — are they okay? This is likely to prompt the next of kin to say that they will check.

The second port of call might be the GP. If you have the employee’s GP details which you are likely to do from the fit notes that they will have been submitting, you could contact the practice explaining that you have concerns and this is likely to trigger the practice then checking up on the individual. The GP will not be able to discuss anything about the individual with you but they will note if you are saying there is out of character behaviour and the fact that you have bothered to take the time to call.

Clearly you might be barking up the wrong tree entirely but for the sake of a phone call or two, if you are in any doubt, it is better than regretting not having raised a concern if there is something to worry about.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Articles Disability Discrimination Law Employment Law Employment Rights Act 1996 Health and Safety Health Conditions Pay Return to Work Sick Pay

Can you withhold sick pay for staff with sporting injuries?

View of the City of London at sunset

You may have come across clauses in a sickness policy or in contracts of employment where the employer reserves the right to review the payment of contractual sick pay (and not pay) if the employee had been injured participating in a sport or leisure activity.

The London Marathon this week got me thinking about this.

I’ve previously always used the example (when explaining the clause to clients) of a keen rugby player. If they get injured on a fairly regular basis why should the employer keep coughing up when this is hardly accidental and is going to keep costing them? There are even City firms who won’t allow you to (for example) play rugby because they don’t want you coming into work on a Monday morning covered in bruises and looking like you’ve been fighting because it creates the wrong impression, but that’s another matter…

None of us go out aiming to get injured, but to what extent can an employer withhold sick pay from someone who (say) breaks a leg running in a marathon, riding a horse or riding a bike?

There is no obligation to pay sick pay over and above SSP in general. If employers choose to pay contractual sick pay they can choose how long they want to pay it for, how it is to be calculated, and any conditions attached to payment. Thus it is permitted for an employer to reserve the right not to make payment in certain circumstances as in the case of the clause we are discussing or when they say nothing will be paid until the employee has passed their probationary period.

As with so many things in employment law, firstly care has to be taken to ensure that any provision by the employer is clear so that entitlement at any given time can be calculated.

Secondly, where the matter is reserved for ‘management discretion’ care needs to be taken to treat similar cases in a similar way to prevent unfairness. When does a ‘leisure activity’ (riding a bike with a friend round the park to go for a coffee) become a sport? Maybe it’s when the activity becomes competitive? Or is it more about the level of risk involved, so high risk pursuits like skiing, white water rafting and taking your horse cross country (which are more likely to result in injury) could result in sick pay being withdrawn but not general sports?

The third consideration the employer will need to make is what signal withdrawal of sick pay will give staff. Will the invoking of the clause to withhold pay come across as harsh? Will it put people off wanting to work in the organisation because it comes across as too uncaring? Most employers are quite sensible about this for this very reason and only use it in the tiny percentage of cases where a staff member is regularly injured – like the semi-professional rugby player.

Anna Denton-Jones
Refreshing Law