Testing for drugs and alchohol at work

The topic of drugs and alcohol testing in the workplace is not just an issue for those who write the HR rule books, according to the specialist employment law team at leading lawyers, Dundas & Wilson.

Some of the proposed changes would impact on employeesí lifestyles outside of work as well. And many employers would have to learn new tricks in managing and motivating employees through such cultural change.

Aside from Olympic athletes, the issue of drug and alcohol testing came into the public eye last year when Manchester United star Rio Ferdinand received a 5000 fine and an eight-month ban for failing to attend a routine drug test.

But in June of this year, British Airways introduced a new drug and alcohol testing policy which covered all of their UK staff; from baggage handlers to managers. And workers on the London Underground, who were sacked after beer cans were found in their mess room, have also recently lost a claim for unfair dismissal.

Eilidh Wiseman, head of the Employment Group at Dundas & Wilson stresses that drug and alcohol testing at work has the potential to affect everyone but that, for employers at least, the legal framework at present remains vague.

Eilidh says, ìEmployers who wish to bring in drug and alcohol testing need to think carefully about their reasons for implementing such a policy; not least because implementing and maintaining an effective programme can be expensive, and the advantages may not offset the financial outlay.

ìAt the moment no legislation is in place which entitles employers to test their staff for drugs and alcohol, which means provisions relating to the matter would need to exist in contracts of employment. The situation is changing fast however, with more and more companies attempting to address the issue.

ìItís perfectly understandable for businesses to want to make sure their employees arenít under the influence of drugs or alcohol while they are at work. In the case of Rio Ferdinand, his alleged drug use would clearly have had an impact on his performance, and the same could be said for workers affected by alcohol or drugs in the office environment.

ìThe whole issue is a very tricky one, however and even if a satisfactory policy can be implemented, employers need to be aware that a positive drug or alcohol test wouldnít necessarily be reasonable grounds for instant dismissal under current legislation.î

From the employee and trade union perspective, possibly the greatest area of interest lies not in what happens at work, but that testing could mean that employees would have to stay sober outside of work as well, in order to be sure of passing random tests the day after.

Eilidh says, ìThere is a great deal to think about when bringing in drug and alcohol testing in the workplace, not least of which is the fact that it may not be met with co-operation. This puts a lot of onus on management and it is essential that any commercial or safety reason why testing is being implemented need to be clearly communicated.î

Itís likely that workplace drug testing could become common practice in the UK however and the form of any supporting legislation is already exercising legal minds.

An independent enquiry jointly sponsored by drug experts DrugScope and the Joseph Rowntree Foundation, a social policy research and development charity, has called on the government to produce legal guidance on drug testing employees.

And new health and safety legislation was also recently proposed in the Dublin parliament which means workers in the Republic of Ireland could soon be subject to regular drink and drug testing.

Eilidh Wiseman says, ìThe simple fact is this issue is not going to go away, and the nature of the tests would undoubtedly impact on peopleís lives outside of work.

ìFor example, it may be that a Monday morning test would yield a positive result for someone who had been drinking excessively or taking recreational drugs over the weekend. In this instance, the fact the substances had been consumed outside of work would not necessarily be an excuse.

ìYet it is also important for employers who plan on introducing testing to remember that employees showing signs of abusing alcohol or drugs could be suffering from stress or some other emotional problem. In order to be responsible employers, the potential for a link between the two cannot be ignored.

ìAnd even where a worker does test positive for alcohol or drugs, it does not automatically give an employer a green light for dismissal.

ìIf the employee agrees to seek help, any attempt to terminate their contract may not be viewed as reasonable. A further drug test at a later date may then be
required to determine whether or not the employee has effectively addressed their problem.î

Mrs Wiseman concludes, ìThe reasons for drug and alcohol misuse in the first place are seldom straightforward, but the legislative environment surrounding workplace testing is at the moment no less fraught.

ìEmployer and employees alike need to be very aware of the conditions in their Contracts of Employment if they want to protect their interests. And everyone should take a keen interest in the ongoing debate as the results could have a significant impact on both management and lifestyles across the UK.î