BBC reports “increased drug testing at work.” What are your rights?

Workplace drug testing has increased significantly in the UK, according to four leading screening companies, as reported by the BBC today.

Apparently, the screening companies have seen rises in the number of annual tests carried out of between 40% and 470% over four years.

One of the companies, LGC Group, has said there has been a growing trend for drug testing to be conducted in “more normalised industries”, including retail and health companies, in addition to more traditional testing in safety-critical roles (where, for example, operating heavy machinery or driving is necessary).

LGC group also say there has been changes in the types of drugs for which businesses wished to screen. Traditionally, it has been for amphetamines, cocaine, cannabis, opiates, but now, there are more requests for testing on ketamine, steroids, and also novel psychoactive substances – otherwise known as “legal highs”.

According to a report in 2012, more than a million workers have drugs in their system, while the number testing positive rose by nearly 50% between 2007 and 2011. And in a speech last year by the Metropolitan Police Commissioner, Bernard Hogan- Howe, to an all-parliamentary group on cannabis and children, he called for mandatory drug testing to be introduced at work for millions of professionals in all occupations- but in particular teachers, intensive care nurses and transport staff.

So what are your employment law rights should you face a drugs test at work?

Your rights

In some industries such as rail and maritime, alcohol testing is already mandatory and necessary as a regulatory requirement. For the majority however, there is no right to mandatory drug testing and therefore your consent for screening will be required.

But it isn’t as simple as that. There will often be a drugs and alcohol policy in your staff handbook or contract of employment providing for testing in defined circumstances- and which may include random testing. Such a policy would also usually include what disciplinary sanctions would apply should you fail the test (e.g. a dismissal based on your gross misconduct).

You can, of course, refuse the test. But if such refusal is unreasonable when your employer has good grounds for testing you, you could find it difficult to succeed at a subsequent tribunal claim if you have been dismissed. An employment tribunal would then need to consider whether the action taken by your employer against you for refusing to take a test falls within the reasonable range of responses.

A tribunal may also take into account the general duty employers have under the Health and Safety at Work Act 1974 to provide a safe working environment. This duty includes ensuring that no staff are allowed to work when impaired by the use of illegal drugs or alcohol.

What are the grounds an employer may have for testing you?

This could be due to:

• a noticeable reduction of your work performance;

• absenteeism;

• any impairment, including your interactions with clients or other staff.

As the law presently stands it is likely that an employment tribunal would find that a dismissal was justified if there was clear evidence that drug use was affecting your work performance, especially if there were health and safety considerations. Conversely, however, a tribunal is unlikely to find that there has been a fair dismissal simply on the basis of some “casual link” or vague claim  about how drug abuse is affecting an employer’s reputation.

By employment lawyer, Philip Landau


Related link: Alcohol testing at work. Click here to access our blog in The Guardian.

Please call 020 7100 5256 and ask to speak to Philip Landau or any member of the employment law team on this or any other issue.

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