Catherine Grady, from law firm Dickinson Dees, explains the legal constraints on testing employees for drug or alcohol use, and outlines the correct procedure
A member of the waiting staff is consistently late and appears bleary-eyed and unfocused at work. The hotel's driver also seems to be having problems with concentration. Without wishing to falsely accuse either employee, you are considering testing for alcohol and drug use before confronting them with the results. Can an employer legally do this?
The Law The Data Protection Act 1998 places responsibilities on any organisation to process personal information that it holds in a fair and lawful way. In particular, it sets out the conditions to be met before an employer can collect, store, use or disclose "sensitive personal information". This would include information concerning, among other things, an individual's physical or mental health or, as in this scenario, information about a worker's drug or alcohol test. Failure to comply with these responsibilities can ultimately lead to criminal charges against the employer.
An employer is permitted to collect sensitive personal data where this is required in order to comply with its "rules and standards", for example, to ensure health and safety at work. The collection of such data must be "necessary". However, where it is suspected that employees are coming to work under the influence of alcohol or drugs, this condition will usually be met.
Expert advice The collection of data can be justified on the basis that it is necessary to enforce an organisation's rules and standards. In order to rely on this, however, those rules and standards must be made known to, and understood by, workers. The relevant rules and standards should, therefore, be set out in a policy that is made known to, and accessible by, all workers affected.
In this policy the employer should set out the circumstances in which medical testing may take place, the nature of the testing, how information obtained through testing will be used, and the safeguards that are in place for the collection and storage of that data. When obtaining information through testing, employers must be clear about what substances or conditions the testing is designed to detect, and why it is being carried out.
Impact Assessment An "impact assessment" should be carried out to determine whether testing is a proportionate response to the problem. In order to carry this out correctly, employers should identify clearly the purpose behind the testing and the benefits it is likely to deliver. Any likely adverse effect should also be considered, which will involve taking into account the consequences of the testing, such as the level of intrusion into the private life of the worker. Finally, an employer should consider alternatives, including cognitive testing or new methods of supervision or training on the dangers of these substances in the workplace.
- Given the intrusive nature of testing, employers would be well advised to undertake and document an impact assessment before testing employees.
- Only use drug or alcohol testing where it can be justified, and consider all other options first.
- Tell workers what they are being tested for.
- Explain the company drug or alcohol policy in the staff handbook.
- Explain the consequences for workers of breaching the policy.
- Do not conduct testing on samples collected without a worker's knowledge.
- Seek advice from an employment lawyer who specialises in advising on data-protection issues.
Beware! Information an employer collects must be of sufficient quality to meet data-protection requirements of adequacy and accuracy. Employers may wish to use a professional testing service specifically qualified to carry out the testing and interpretation of results. There are potential criminal penalties for breach of the Data Protection Act, therefore employers are wise to stay within the law.
Technical accuracy is also important if the information gathered is used to justify disciplinary action. If a dismissal cannot be justified, a successful claim brought to an employment tribunal for unfair dismissal could result in a potential payout to the worker of up to 56,800. Don't be caught out.