Rebecca Ireland outlines what HR professionals should consider if drug testing is carried out in the workplace
Angela Rippon recently hit the headlines when she tested positive for opiates after eating poppy seed bread. It was an experiment inspired by a man who had been dismissed for failing a drug test; in his view, the only explanation was his morning toast. Bearing in mind that in 2015-16 around 8.4 per cent of adults aged 16-59 had taken an illicit drug in the last 12 months, should employers be actively testing their employees for drugs? What are the rules? And should Angela Rippon's experiment suggest any change in approach?
Legal obligations
Under the Health and Safety at Work Act 1974 and other legislation, employers have a duty to ensure the health, safety and welfare at work of their employees. It is also an offence to permit the supply or use of controlled substances on an employer's premises. It could result in prosecution, for example, if employers have knowingly allowed an employee to continue working under the influence of illegal drugs or alcohol, and if their behaviour places employees, or others, at risk. For this reason, most drug testing at work is reserved for safety-critical posts.
Is drug testing widespread?
Surveys conducted by Blake Morgan in 2004 and 2012 showed that only around 8 per cent of employers operated drug or alcohol testing. Interestingly, of those employers that did conduct testing, more than a third tested all existing staff, while just under 20 per cent tested only those in safety-critical roles.
What to consider
If, following careful consideration, employers decide to undertake drug testing (whether random or not), they must remember:
Testing cannot be done without the employee's consent. Contracts and policies can specify that withholding consent may lead to disciplinary action.
Drug test results are sensitive personal data under the Data Protection Act 1998 (DPA). Explicit consent must be obtained and employers must treat results with all the necessary safeguards under the DPA. Employers can find guidance on drug testing in part 4 of the Employment Practices Data Protection Code.
It may be an intrusion into the employee’s right to privacy contrary to article 8 of the European Convention on Human Rights. The intrusion may be justified if it is in accordance with the law and is necessary in the interests of public safety, among other things.
Raising awareness, clear communication and ideally staff consultation should be central – including policies, training staff in recognising drug misuse, promoting awareness and employee assistance programmes.
Extensive consideration should be given to which system and testing company is used, how and how long samples are stored securely, and limiting access to the right people.
A new law in 2016 dealt with so-called ‘legal highs’. Acas says employers must make clear how these will be treated.
Angela Rippon's experiment demonstrated that a drug test could show the presence of illicit drugs where none were taken. Minute traces of opiates in the seeds could trigger such results from 30 minutes to 16 hours after ingestion. It is reported that vitamin B supplements, ibuprofen and tonic water can produce equivalent results, leaving employers potentially assuming the worst. In such circumstances, dismissal for gross misconduct may not be appropriate. Further investigation and even tests may be needed, and it is vital to use reputable substance-testing specialists to ensure a robust chain of evidence.
Employees should feel supported in the workplace. While some employers operate a zero-tolerance policy (just 4 per cent in 2012 compared to 28 per cent in 2004, according to our survey), in most cases employers should aim to treat drug-related problems the same as any other health issue (while taking into account any criminal offences). Understanding employees’ struggles and providing them with help and assistance should be combined with protecting the integrity of the business, to reduce workplace incidents and improve health and safety.
Rebecca Ireland is a partner in the employment law team at Blake Morgan