Using Drugs is illegal
Using drugs is illegal... but is testing for drugs by an employer legal?
We all know that drug taking is illegal (although the cannabis debate continues), however, if you suspect one of your employees is taking drugs and their performance at work is impaired, is there anything you can do about it?
In an environment with machinery, which could cause serious accidents if used inappropriately, it would not be unreasonable for the ‘misuse of drugs or alcohol’ to be cited as an act of gross misconduct and for an employer to include within the company’s policy that target testing would be used.
On the other hand, it is less likely in a normal office for testing to be considered reasonable. For example, a young assistant in an accountancy practice repeatedly absent from work on Mondays and patently unable to concentrate on her duties during the early part of each week may be suspected of taking drugs. However It would not be appropriate for her employer to ask her to take a drugs test.
In any event, if the right to random or target testing is not included in the business’ normal rules and standards, it can only take place voluntarily. Covert testing should never be carried out unless it is part of a police investigation into a serious crime.
It is vital that employers get workplace drugs testing right. If it is done inappropriately, then any disciplinary action taken as a result is likely to be unfair and may result in tribunal claims.
The two areas of law to consider are the Human Rights Act 1998 and the Data Protection Code of Practice - Information about Workers Health. The latter is currently in draft form and expected to come into force in July 2004 after a period of consultation.
Article 8 of the European Convention on Human Rights sets out the right to respect for private life. Drugs testing by its very nature is invasive. Therefore an employer will need to be able to justify both the fact that drug testing is being carried out and the type of testing being used eg. if the work involved health and safety risk as in the case of transport workers.
The draft Data Protection Code also suggests that drugs-testing is unlikely to be justified unless it is for health and safety reasons. If it is to be used, it is important that this is clearly set out in the business’s policies and procedures and made known to all staff.
In all circumstances, any testing must be of the highest technical quality and subject to vigorous quality control procedures and employers should therefore use a professional testing service.
If you think you may ever want to send an employee, about whom you have concerns for a drugs test and there is a health and safety risk, you may wish to review your policies and contracts. Otherwise you will have to follow normal disciplinary procedures for conduct at work or underperformance, not for taking drugs, as in the case of the accountancy assistant.
If you have any questions or would like to discuss the content of this article further please contact Debbie Taylor on Debbie.taylor@mercia-group.co.uk or telephone 0116 258 1200.