Wake-up call – When should you introduce drug and alcohol testing?
If you are considering introducing drug and alcohol testing for your staff, the negative effects could outweigh the benefits. Jenny Shanks reports
The Problem
I manage a hotel. Last Christmas there were a number of incidents involving staff either coming in hungover or still under the influence after having consumed alcohol or taken drugs the night before. Can we introduce drug and alcohol testing to stop this behaviour?
The Law There are two types of testing regime: random, and ‘with cause'. The latter refers to testing when circumstances indicate that an employee might be under the influence of alcohol or drugs.
Employers should bear in mind that employees cannot be forced to consent to drugs or alcohol testing. If the right to conduct testing is included in the employment contract, however, a refusal to undertake a test could constitute a breach of contract, or form the basis for disciplinary action.
Generally, testing will only be justified if it is carried out for a good reason. In general, health and safety concerns will be sufficient, so long as the risk necessitating the test outweighs the adverse impact the testing could have on the employee. Drug and alcohol testing is inherently intrusive and employees may also argue that it interferes with their right to privacy under the European Convention on Human Rights.
Alcohol and drug test results are also considered sensitive personal data under the Data Protection Act 1998 (DPA), so employers must handle the information appropriately.
Expert Advice Employers should exercise caution before carrying out drug and alcohol testing. You should weigh up the benefits of testing against the negative effects both in terms of the need to comply with data protection, human rights, and employment law, and the potential damage to the employment relationship and staff morale.
On one hand, employers have a duty to keep both employees and customers safe. If the type of work involves a risk to others or the use of dangerous equipment then it is more likely that testing could be justified.
On the other hand, introducing random testing, which is not applied fairly and consistently, could result in grievances from employees feeling ‘singled out', and ultimately in discrimination claims at an employment tribunal if this is on the basis of a protected characteristic such as race or sex. Similarly, an unreasonable request to test could lead to the employee resigning and claiming constructive unfair dismissal.
Even a dismissal carried out after a positive test and a proper procedure may be found to be unfair if, for example, there was no reasonable basis to conclude that the employee's conduct created a real risk. Further, although the DPA does not prohibit testing, it makes clear that it should only be used when necessary, and that any test results should be processed carefully.
So, while testing for drugs and alcohol may feel like a quick fix, in most areas of the hospitality industry it is unlikely to be proportionate, both in terms of cost and practicality, to the risks involved.
In most cases of drug and alcohol misuse the effects will be obvious and common sense should be applied. For most hospitality employers a clear disciplinary policy and active communication and enforcement should be enough to prevent a repeat of last year's overindulgence.]
Having said that, testing may make sense for some employees (for example, those that have staff directly responsible for customer safety or who are unsupervised).
Checklist Before introducing testing employers should:
• Carry out a risk analysis. Ask yourself why you want to introduce testing? Do the benefits of testing outweigh the risks?
• Make sure you have a drug/alcohol testing policy in place, and that it clearly sets out the criteria for selection and the consequences of not consenting to or failing a test
• Apply the policy fairly and consistently, and be mindful of data protection and human rights issues
Beware
• Testing could result in employee engagement issues or an employment tribunal claim. The current limit on tribunal compensatory awards is the lower of one year's earnings or £74,200.
• Introducing drug and alcohol testing can be expensive. The Information Commissioner has the power to impose fines of up to £500,000 for data protection breaches.
Contact
Jenny Shanks is a solicitor at Brodies LLP
jenny.shanks@brodies.com
