Pre-employment or random screening has been banned in many European countries. In the UK, the law on drugs-testing is very unclear. Although the possession of banned drugs is illegal, a person cannot be charged simply because they test positive after a drugs test.
Employers do have a duty to protect the health and safety of their workplace under the Health and Safety at Work Act. That includes ensuring that all employees are not working under the influence of drink of drugs.
Public sector employers also have to abide by the 1998 Human Rights Act, which gives a right of privacy to their employees. Employment tribunals have also ruled that an employer cannot dismiss someone simply because they have been found in possession of drugs outside the workplace.
The law states that no employee can be forced to provide a sample of urine, hair, saliva or blood for any purpose. However, if a person has a contractual obligation to provide a sample, and refuses to do it, in certain circumstances this can be grounds for dismissal.
A doctor should not take any sample without getting the ‘informed consent’ of the person being tested but nowadays most samples are not taken by doctors, and technicians working for a drugs testing company are not covered by the same ethical framework.
Even then consent should be given before a sample is taken but in practice it is very difficult for a person applying for a job, or if ordered to give a sample by their employer, to refuse so the concept of consent is meaningless.
Privacy and Data Protection
Workers should also be entitled to privacy when giving a sample. The privacy issue is more commonly an issue when urine samples are used. Some employers have argued that another person should be in the room when a person is giving a sample to make sure it is not substituted or diluted. This is unreasonable, and a breach of human rights.
Privacy and data protection considerations have also been addressed by the Information Commissioner’s Office, whose data protection code on obtaining and handling information about workers’ health puts strict limits on the health information that can be obtained by employers.
It concludes that in most instances alcohol and drug testing is an unwarranted intrusion. The fourth part of the Employment Practices Data Protection Code – ‘Information about Workers’ Health’ says: ‘Very few employers will be justified in testing to detect illegal use rather than on safety grounds,’ adding: ‘even in safety critical businesses such as public transport or heavy industry, workers in different jobs will pose different safety risks.
The Code’s good practice recommendations say:
- Only use drug or alcohol testing where it provides significantly better evidence of impairment than other less intrusive means.
- Use the least intrusive forms of testing practicable to deliver the benefits to the business that the testing is intended to bring.
- Tell workers what drugs they are being tested for.
- Base any testing on reliable scientific evidence of the effect of particular substances on workers.
- Limit testing to those substances and the extent of exposure that will have a significant bearing on the purpose(s) for which the testing is conducted.
An Independent Inquiry in 2004 into Workplace Drug Testing concluded that the legal situation in relation to employment law and drug testing was unclear and called on the Government to introduce regulations to protect workers and employers. It also concluded that attempts by employers to force employees to take drugs tests could potentially be challenged as a violation of privacy under the Human Rights Act, although this would not apply where drug testing is for genuine safety or security reasons.
If a person were using a prescribed medicine, including an opiate, which they required for a condition that meant they were disabled under the Disability Discrimination Act and an employer did not employ them, or dismissed them, as a result of a drug test, they may well have a strong case for action against the employer under that Act.
However where an employee is sacked as a result of a positive drugs test, the employer would still have to show that drugs had a detrimental effect on the employee’s ability to do the job. So if there is no evidence that there has been any drug use at work, or that performance was influenced by illegal drugs then tribunals may consider the dismissal unfair, however it will also depend on the kind of job the person does.
For more information or if you would like to order our workplace testing for your business please phone: 0333 600 1300