According to drug charity Release, there has been a significant increase in the numbers of employees being subjected to drug testing by their employers, and that more workers are being dismissed from their jobs as a direct result.
Many employers now carry out random drug tests on their employees, particularly in areas where health and safety are of paramount concern. Any employer who wishes to put a drug testing scheme into effect should first have a clear policy in place which sets out the circumstances in which they can ask an employee to take a test and also the implications of a refusal to comply.
Employers are not legally required to give their employees notice if a drug test is to be carried out. However, if the test is going to be carried out at short notice or with no notice, it should be made clear in the employer's policy. This will prevent the employee from subsequently claiming that they were unaware that such a test could be required of them.
If a drug test on an employee comes back positive for illegal substances, the employer may be in a position to dismiss them.
From past cases, the prevailing attitude of the Employment Tribunal seems to be that drug use away from the workplace is only a justification for dismissal if it impacts on the employee's performance or negatively affects the employer's reputation or business. This is seldom clear-cut, however: in one case, an Employment Tribunal found that the dismissal of a teacher who mainly taught adults for possessing cannabis was unfair, while a similar case involving a forklift truck driver was found to be fair.
While employers cannot force workers to submit to drug testing, refusal to co-operate could be grounds for dismissal. Not only could it be argued that non-compliance implies guilt, but, if testing is explicitly mentioned in their contract, refusal to take a test could constitute breach of contract.
Random drug tests must be carried out in a fair and impartial manner if an employer is to avoid future discrimination claims. If, for example, an employer appears to be targeting younger employees for testing, they may be leaving themselves open to claims of age discrimination. All tests should be recorded and monitored so that employers can show that their procedures are reasonable and transparent.
For public bodies, Article 8 of the Human Rights Act - the right to privacy in one's private and family life - must also be taken into consideration. While both the Employment Tribunal and the Employment Appeal Tribunal are careful to recognise this right, when the issue concerns the consumption of illegal substances and the health and safety of others an employee is unlikely to be able to use this as a defence.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
