Drug and alcohol abuse can negatively affect an individual’s ability to perform their job. What can employers do if they suspect employees are adversely affected by alcohol or illegal drugs in the workplace?
From a sudden or gradual behavioural change, suspicions may be roused that an employee may be taking illegal substances or drinking to excess. One way of addressing these suspicions is to introduce random or regular testing of employees for evidence of alcohol or drug abuse. However, employers cannot introduce such tests without restriction.
Article 8 of the European Convention on Human Rights, which was incorporated into UK law by the Human Rights Act 1998 (the "Act"), enshrines the right to respect for employees’ private and family lives. Whilst an employee cannot enforce the Act directly against a private employer, the Courts and employment tribunals (as public authorities) are subject to the obligation not to act in a way that is incompatible with a Convention right. This right is not absolute, however, as it must be balanced against the protection of rights and freedoms of others, such as public safety. Interference with an employee’s private life is permissible only if it is necessary to achieve a legitimate aim and the testing is a proportionate means of achieving that aim. Most importantly for these purposes, the effect of Article 8 is that an employer should only address the employee’s behaviour if it reasonably believes that there is an adverse impact on the health and safety of other persons, the employer’s business or reputation or the employee’s ability to perform his or her duties.
In addition to consideration of the Act, reference should be made to the contract of employment. Testing, or the incorrect management of employees in relation to that testing, can amount to a breach of contract, including the implied mutual duty of trust and confidence. Breach of this, or any other duty, could expose an employer to claims for wrongful dismissal, unfair dismissal or discrimination.
The Data Protection Act 1998, together with Part 4 of the Information Commissioner’s Code of Practice (Information about Workers’ Health), is relevant to information obtained from testing employees for drug or alcohol abuse. Although the Code does not have legal force, the courts will consider compliance with its provisions when determining whether there has been a breach of the Data Protection Act 1998.
Through a series of case studies, this article considers the issues that can arise in relation to the introduction and conduct of tests to detect drug or alcohol abuse.
A holiday tour company has a young workforce with high absenteeism. It wishes to monitor and control drug and alcohol abuse by its employees by introducing regular drug and alcohol tests. What factors should it consider before doing so?
Testing must be justifiable. From a data protection perspective, the obtaining of information through random or regular testing should normally be confined to those workers who are employed to work in safety-critical activities. However, exceptionally, testing to detect illegal use may also be justifiable where there is a serious risk of damage to the employer’s business or reputation or where it would give rise to breaches of an employee’s contract of employment or disciplinary rules. The testing should be as unobtrusive as possible. It should also be designed to detect impairment at work rather than the private use of drugs and/or consumption of alcohol. The employer must be able to show that regular testing is necessary and proportionate to identifying and addressing the problem. Testing on a regular basis is more intrusive than random occasional testing and so the employer must have solid justification for adopting this course of action. Responsibility for the safety of clients in the employees’ care may indicate such a justification, but each case is judged on its own facts and the employer should document its consideration of whether random testing (possibly on a less frequent basis) would achieve the same objective. In a situation where there is no health and safety issue then, unless the employer has reasonable grounds for believing that the high level of absenteeism is in fact due to drug and alcohol abuse, rather than a stereotypical assumption that use of recreational drugs among the young is rife, then the employer should confine his monitoring to post-incident testing.
Any testing should be controlled by a clear and comprehensive policy that has been properly communicated to the employees and is applied fairly and consistently. Ideally, the employee’s consent to being tested when requested should be expressly included in the contract of employment to allow disciplinary action to be taken for breach of contract if a test is refused. The testing policy, or the relevant contractual term, should set out the possible consequences of a failure to consent at the appropriate time or a positive test result. This may be disciplinary action, support (whether counselling or otherwise) and/or the reporting of possession or dealing in drugs to the police following sufficient investigation into the facts.
If the policy, or consent, is to be contractual, it will constitute a change to the employees’ terms and conditions of employment and so employees should be consulted prior to the change.
Dismissal for a single positive test result may well expose the employer to liability for unfair dismissal, unless the employee’s work performance is seriously impaired or there is a health or safety risk. Instances of alcoholism and non-prescribed drug dependency should be treated, where possible, as illnesses and so initial action should seek to assist and support the employee rather than to discipline.
If an employee refuses to be tested and the employer has genuine performance, commercial or health and safety concerns, it should initiate its disciplinary procedure for breach of contract (provided there is a contractual term providing that consent), failure to follow a reasonable lawful instruction or for a lack of capability to fulfil his or her job role. There should also be compliance with the statutory disciplinary and dismissal procedures in order to avoid a finding of automatic unfair dismissal and an increase of up to 50% in any award made by an employment tribunal.
Following a random alcohol test, a bus driver is found to be marginally over the permitted limit for alcohol. He has ten years’ service and an unblemished disciplinary and health record. What action should his employer take?
The bus company has obligations towards its employees, passengers and the public at large to maintain certain standards to protect health and safety. In the transport sector, additional legislation is in place to control alcohol misuse and so the employer must exercise due diligence in ensuring that its employees are not under the influence of alcohol while working. Disciplinary policies, particularly in organisations whose employees have obligations to ensure public safety, should be very clear as to the prohibition on illegal drug use or alcohol abuse and the consequences of such use or misuse.
After a full and careful investigation into the facts, the employee should be invited to a disciplinary meeting, conducted in accordance with the statutory dismissal and disciplinary procedures, and given the opportunity to state his case. The driver should be suspended from driving duties during the investigation and disciplinary process (ideally, the contract of employment should contain an express power of suspension that may be exercised in such circumstances).
Any disciplinary action taken should be justifiable, fair and reasonable in the circumstances. This employee’s result is only marginally over the limit and, in the light of the employee’s exemplary prior employment record, it is unlikely to be reasonable for the employer to treat this single incident as gross misconduct. However, a formal warning is clearly necessary and the serious nature of driving a public service vehicle whilst under the influence of alcohol should be impressed upon the employee. The employer should also fairly take into account any other genuine mitigating circumstances. For example, there may be an underlying exceptional reason that led to this isolated incident, such as bullying at work or a recent traumatic event in the employee’s personal life. In any event, the employer should explain the likely consequences of a second positive test result.
This employer will also be concerned about the potential damage to its reputation that may be caused if it became known that one of its employees was over the limit whilst in control of a bus. The employer’s reputation as a safe organisation will be vital to its retention of the contract to provide public bus services. If the company’s disciplinary procedure permits it, and the circumstances justify it, it may be appropriate to "jump" straight to a final written warning rather than issue a first formal warning. Strict supervisory measures should also be introduced. This may include regular testing of the driver for a specified period of time.
If the employer has reasonable grounds to believe that there may be alcoholism or illegal drug dependency, the matter should be treated as one of "capability", rather than a disciplinary offence in the strict sense, as such conditions are illnesses, and may co-exist with other health problems, such as severe depression. If this is the case, consideration should be given to transferring the driver to non-driving duties, or suspension if transfer is not possible, and the driver should be provided with support to address his health problems.
The HR department of a large company hears rumours about a telecommunications manager’s recreational drug use outside of work. There is no evidence of impairment of the employee’s job or that drugs have ever been used at work. The employer has a random drugs testing policy, but so far the employee has not been tested. What issues must the employer consider in deciding what to do?
The employer has a duty to ensure the health and safety of its employees and the general public. However, the employee is not working in a safety-critical role and, if there is no evidence of serious impairment at work or adverse impact on the company’s business or reputation, testing is unlikely to be justifiable in these circumstances. Even if damage to reputation is feared (for example, if the employee is in a high profile job), the policy is for random testing only and so singling out the employee for testing would fall outside the remit of the policy.
The employer’s options are, clearly, limited. It should remind its employees of its random testing policy and make clear its stance on alcohol and drug abuse to discourage a workforce culture of off-duty consumption of non-prescribed drugs.
Conclusion
These case studies highlight the importance of introducing and enforcing alcohol/drug testing policies into an organisation only where it is appropriate and necessary to do so. They also demonstrate that a knee-jerk dismissal following a single positive result may lead to a finding of unfair dismissal. Within the confines of the protection of the health and safety of other employees and the public at large, the employment tribunal is likely to favour an employer that exercises compassion and offers support in circumstances of drug or alcohol abuse.
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.