Testing employees and job applicants for drugs and alcohol is becoming increasingly common in the workplaces around the world. In New Zealand, people receiving unemployment benefits can have their welfare payments halved or stopped if they don’t submit to a potential employer’s request for a clean drugs test or fail such a test.
In the United States, 57% of respondents to a survey in 2011 said they required all job candidates to submit to a pre-employment drug test as a condition of employment.
Here in the UK, drugs and alcohol testing by employers in the oil and gas industry is a long established aspect of the employment relationship, particularly in high risk roles, however some commentators believe advances in technology that make testing simpler and cheaper could lead to regular drug and testing across the industry – and further afield – becoming a matter of course.
Recently, a new device was launched which uses a fingerprint scanner to measure blood alcohol content through the skin. The new testing equipment uses near infra-red light to measure blood alcohol content in the skin and can give employers a result in just eight seconds – making it possible to test 450 employees per hour.
So, will we see ‘testing turnstiles’ set up at workplace entrances, testing everyone who walks through the door and sacking them on the spot if they fail? And do employers have the right to impose such testing regimes?
This Orwellian vision is unlikely to materialise without a fundamental change in the law. As the law stands, testing employees for drugs and alcohol is only lawful in certain circumstances, even if employers use the less obtrusive methods of testing that are now available.
WHEN CAN AN EMPLOYER IMPLEMENT DRUGS AND ALCOHOL TESTING?
To answer this question, the rights of the employee need to be balanced against the employer’s responsibilities and reason for testing. As employers have a duty to keep employees safe, under the Health and Safety at Work etc Act 1974 as well as at common law, safety concerns can often act as a justification for an employer who wishes to introduce such a drug and alcohol testing regime, particularly in high risk areas such as the oil and gas sector.
However, even in those cases, employers must still get the employee’s consent to the testing, and in any case an employer should not carry out drug or alcohol testing without good reason. A drugs and alcohol policy can provide that an unreasonable refusal to consent could be used as a basis for disciplinary action against the employee.
EMPLOYEE RIGHTS
So what are the employee’s rights that need to be balanced against the employer’s need to keep the workforce safe?
Firstly, there are Data Protection issues. Drug and alcohol test results are regarded as sensitive personal data under the Data Protection Act 1998, and so must be processed lawfully. The Data Protection Employment Practices Code and Supplementary guidance provides good practice recommendations for employers to follow to ensure they do not breach the Act.
Employers should also be aware that testing can give rise to issues of compliance with the European Convention on Human Rights (ECHR). Although the Convention cannot be relied upon directly, an employee could argue, for example in the context of Employment Tribunal proceeding arising from their dismissal, that a requirement to submit to a drug or alcohol test interfered with their right to respect for private and family life (article 8 of ECHR).
Such interference could be justified, however, if carrying out the testing was a proportionate response to the issues the employer faced. In other words, a specific health and safety concern solely affecting offshore workers might not justify an extensive and wide ranging drug screening programme across all categories of employees whether they are in a safety critical role or not.
UK POSITION VS US POSITION
As it stands, therefore, the UK legal framework stands in the way of those who would test all their employees every day. But consider the position in America, where drug screening of employees (and, indeed, job applicants) is widespread. About 46% of private companies require workers to submit to tests either as a requirement for getting their job or on a random basis. Testing programmes are required to be non-discriminatory and must comply with state laws, but in general an employer’s right to test its workforce is far wider than in the UK.
PROCEED WITH CAUTION
The conclusion has to be that just because testing is cheaper and easier than ever before, this doesn’t give employers carte blanche to test whoever they like, whenever they like, despite the useful information the tests could reveal. Before implementing a drugs and alcohol policy, employers need to decide whether testing is appropriate for their particular business, and if so, whether it should be implemented for all employees or for different groups of employees. It will be far easier to justify testing a helicopter pilot, where the risks to health and safety are obvious, than a purchase ledger manager based at head office.
Further guidance on introducing a drugs and alcohol policy is available here
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