The starting point for an employer when considering testing for drugs and alcohol lies in what is set out in its policies and contracts of employment.
If an employer takes a “zero tolerance” approach on drugs and alcohol in the workplace this should be stated in its disciplinary policy, which should ideally include reference to ‘being under the influence at work’ and ‘failing or refusing a drug or alcohol test’ as examples of “gross misconduct”.
Where an employer has a drug and alcohol policy it should distinguish drug and alcohol use from drug and alcohol dependency. The key difference being that “dependency” is likely to be a medical issue and whilst, in itself, may not amount to a “disability” for the purposes of the Equality Act 2017, it can be indicative of an underlying issue which could satisfy the legal definition. An employer will therefore need to be careful not to discriminate against an employee on the basis of any such disability.
An effective drug and alcohol policy should highlight support the employer can offer where it identifies that there is – or may be – a medical or other underlying issue (in such a situation, a “zero tolerance” approach may not always be appropriate). It should also deal with the employer’s rules relating to prescription medication and social drinking. In the latter respect, there will usually be a distinction drawn between use of alcohol (appropriately, in moderation, generally outside working hours) and misuse (resulting in loss of control and a degree of intoxication that poses a risk to the employee and/or others).
In conjunction with its policy, employers should consider including (where appropriate) the right to search an employee’s possessions (ie bag, desk, locker etc.) within its contracts of employment. Where an employer exercises the right to search, this must be done reasonably and only used where there is other evidence that supports the action taken by the employer, i.e. the employer has been informed that the employee has brought drugs or alcohol onto the premises or the employee’s conduct/demeanour gives reasonable grounds to suspect misuse.
Where an employer wants the right to insist that employees undergo drug and alcohol testing, this again ought to be included in the contracts of employment and supplemented by a clear policy on how the testing will be undertaken and the consequences of refusing or failing a test. Testing is unlikely to be considered reasonable unless the employer has undertaken an assessment and deems testing necessary and proportionate for health and safety reasons (don’t forget that any assessment should be documented!). The employer should consider, for example, if there are less intrusive means of confirming drug and alcohol use before resorting to testing.
Even where a contractual right exists for the employer to carry out drug and alcohol testing, they will still need the employee’s consent from a practical and ethical perspective. This would suggest that it is within the employee’s control to “opt out”. However, refusal to be tested in circumstances where the employer has reasonable grounds for believing there is an issue may be treated as potential misconduct under the employer’s general disciplinary policy or, specifically, their drug and alcohol policy if they have one.
Are there any data protection or privacy issues an employer ought to consider?
Yes, the holding of drug and alcohol test results would constitute the processing of “sensitive” personal data (also known as “special category data”) as it concerns an employee’s health. Therefore, any processing will be subject to more stringent rules than those that generally apply to other types of personal data. From a transparency perspective, also, it is important that the employer lets the employee know the purpose of the testing (including that the data may be used for disciplinary purposes), with whom any test results may be shared and the consequences of not consenting to testing.
What if employee fails the test?
Firstly, the employer should not jump to conclusions if the test comes back “positive” for drugs or alcohol as there may be an acceptable explanation. Take advice from the testing provider who will be able to explain what a “positive” result means. It may be that the test has picked up historic use which doesn’t impair the employee’s ability to perform their duties. Some supplements and medical conditions can give false positives as well. One option the employer may wish to consider is re-running the test. In any case, the employer should review and consider the specific circumstances of each case.
Where an employee’s drug or alcohol use is rooted in an underlying issue (i.e. depression) this needs to be treated with care and compassion. Employers should consider referring the employee to occupational health, utilising any medical related benefits, e.g. counselling, or suspending a disciplinary process whilst the employee undergoes treatment.
If the employee has a disability, the employer will need to consider whether it should make any “reasonable adjustments” such as changing the employee’s duties (NB failure to make reasonable adjustments could leave an employer open to a tribunal claim).
Whether or not the employee has a disability, and regardless of the test result, the employer should always consider health and safety aspects of the work environment and take appropriate precautions to avoid injury and hazards (e.g. if the employee’s job involves working at heights, handling with industrial chemicals or driving vehicles).
What if the employee turns up to work smelling of drugs or alcohol, is this gross misconduct?
Not necessarily, unless there is evidence of adverse impact on the employee’s ability to carry out their role. However, where an employee is found in possession of illegal drugs at work, in this case dismissal may well be reasonable. Nevertheless, no steps should be taken to dismiss without following a formal disciplinary process.
Guidance for employers:
- Consider implementing a drug and alcohol policy or, if there is already a policy, review it!
- If you do decide to implement a drug and alcohol policy, communicate with your employees before introducing it.
- Where you do consider testing, ensure it can be justified – i.e. it should be reasonable and proportionate taking into account the relevant risks and workplace hazards plus not carried out routinely.
- The UK ICO published its Employment Practices Code[1] (which is a pre-GDPR document and not specifically Isle of Man guidance), yet it is potentially helpful to employers and contains a section about handling information from drug and alcohol testing (pages 92 – 94).
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Reference:-
[1] Employment Practices Code
