Drugs and Alcohol at Work
06 November 2015
Over recent months, we have received an increasing number of client queries regarding when they can test employees for drug and alcohol abuse and when it is reasonable to dismiss an employee following a positive test result.
In short, it is acceptable for an employer to carry out drug / substance abuse testing before and during an employee’s employment providing that the use and application of that testing is justified, necessary and proportionate.
Under the Health and Safety at Work (NI) Order 1978, employers have a duty to ensure a safe place of work and safe systems of work for their staff. If a company knowingly allows an employee who is under the influence of drugs or alcohol to continue working, it could be in breach of health and safety legislation as the employee may endanger their own safety, or the safety of others. Breach of health and safety law is a criminal offence, attracting potentially unlimited fines and/or imprisonment in the most serious of cases.
Drug/alcohol screening and testing is understandably a sensitive issue given its intrusive nature. There are a number issues that employers should consider prior to introducing such testing including:
- obtaining employee consent;
- implementing a policy to ensure that employees are clear as to the standards expected and the potential consequences of breaching those standards;
- the type of testing;
- how results are to be collected and kept secure; and
- what action will be taken where a positive result is received.
Testing, of course, should only be done with the employee’s consent. An employer must always have the employee’s consent to conduct every test, otherwise it would be open to accusations of assault. When given, consent should not be confined to the testing itself but should also cover the subsequent recording, use and disclosure of the test results.
If consent is to be relied on, it must be freely given by the employee. This means that the employee must be able to say ‘no’. A blanket consent obtained at the outset of employment cannot always be relied upon.
Employers may consider inserting a clause in its contract of employment to make specific reference to consent to testing being given as and when required. This clause would state that, whilst the employee can refuse to give his/her consent, an adverse inference may be drawn from any refusal and the employee may be subject to disciplinary proceedings as a result.
It is imperative that an employer has clear rules regarding coming to work under the influence of alcohol or drugs (whether prescribed, over the counter or controlled substances) and of course drinking alcohol or taking drugs whilst at work. The best way to communicate the rules and expectations is through a substance misuse policy The policy, together with proportionate and justifiable testing of employees will place employers in a better position to ensure compliance with health and safety obligations and to demonstrate a fair reason for dismissal following a positive test result.
If an employer does opt to carry out testing under the terms of a substance misuse policy, it is important that it complies with the data protection principles relevant to sensitive personal data. Part 4 of the Information Commissioner’s Employment Practices Code deals with “information about workers’ health”, and provides guidance on an employer’s obligations under the Data Protection Act 1998 when testing employees.
We recommend that you take legal advice on your obligations under data protection laws together with specialist advice on the types of testing that is available to ensure that the testing that is implemented is appropriate and proportionate to the needs of your organisation.
- Consider the approach to be taken with regard to substance misuse at work, e.g. supportive, disciplinary or a mixture of both.
- Take advice on the types of testing available
- Ensure that there is a substance misuse policy in place which details the reasons for the presence of such a policy and the consequences of any breach.
- Consider your obligations under the Data Protection Act 1998 when processing personal sensitive data following any testing.
The contents of this guidance note are for information purposes only and do not constitute legal advice.