As the holiday and barbecue season fast approaches, employers should be asking themselves: are we protected against drug and alcohol abuse in the workplace? The impact of drug and alcohol misuse on the workplace can be seriously detrimental, being associated with absenteeism, lower productivity and health and safety issues. Employers therefore need to ensure that they have adequate policies in place in order to protect themselves against this. In the UK, drug and alcohol testing at work is permitted, subject to compliance with data protection requirements. However, employers need to be aware of the potential pitfalls of drug and alcohol testing, and the consequences of acting rashly on positive results.
UK employers have a duty of care at common law and under the Health and Safety at Work Act 1974 to protect the health, safety and welfare of their employees at work. An employer could be in breach of this duty, and potentially criminally liable, if it knowingly permits an employee to work whilst intoxicated by alcohol or drugs. It is also a criminal offence, under the Misuse of Drugs Act 1971, for occupiers of premises (including employers) to knowingly permit the production, supply or use of controlled substances on their premises. Employers can break the law if they knowingly allow employees to take part in drug-related activities on their premises. 'Knowingly' also means 'turning a blind eye' to such activities for these purposes. Certain industries such as transportation and aviation also have specific legislation prohibiting against working under the influence of alcohol or drugs.
One of the largest unions in the UK, estimates that between 3% and 5% of all work-related absences are due to alcohol, costing the UK economy some £2 billion a year, and a recent survey carried out by drug and alcohol screener Concateno showed that one in 30 employees it tested in 2011 had drugs in their system at any one time. A briefing by the BMA Occupational Medicine Committee in February 2014 reported the highest levels of alcohol dependency to be between the ages of 25 and 34, and that 10% of all problem drug users were aged between 15 and 64, namely working age.
Perhaps in light of this, the importance of managing drug and alcohol abuse in the UK workplace has gained pace in recent years, and a survey of four leading UK screening companies showed a rise in the number of annual tests carried out of between 40% and 470% over four years.
In the UK, testing for drug and alcohol use in the workplace is not considered to be discriminatory as it is in Canada. However, profiling of workers to be tested may be discriminatory on protected grounds, and certain diseases caused by drug and alcohol abuse may constitute a disability under the UK Equality Act, thereby attracting protection. Similarly to the position in Canada, a conflict arises between an employee's right to privacy and workplace safety. Thus while it may be difficult to justify 'spot-testing' workers randomly for substance misuse, testing where there is cause for concern or for health and safety reasons is more likely to be justifiable.
The difficulty faced by employers in the UK is often how to treat the issue of alcohol and drug abuse. Dependency could be a health issue and/or indicative of underlying psychological problems or stress, or a misconduct matter to be addressed through disciplinary action. In order to ensure consistency of treatment among workers and avoid claims for unfair dismissal (where the discovery of alcohol or drug misuse leads to dismissal), it is good practice for employers to implement a drug and alcohol policy making clear the parameters and expectations of the employer. Where employees are required to operate machinery or drive, a zero tolerance approach may be appropriate, whereas in many office environments, social drinking is part of the workplace culture and may be tolerated in moderation. Policies should explain the misconduct implications of excess drinking or drug abuse and refer to or set out the disciplinary process, and employers should reserve the right to require medical reports in respect of employees.
In terms of testing for alcohol or drugs, collating and storing information from employees in this way constitutes processing 'sensitive personal data' under the Data Protection Act 1998. As such, processing is conditional upon obtaining express employee consent or demonstrating necessity to process in compliance with a legal obligation, such as health and safety at work. Consent must be freely given and explicit. An employer then needs to establish that either it is under a legal duty to process information about workers' health (pursuant to statutory requirements), or that the benefits gained from processing information about workers' health justifies the privacy intrusion or any other adverse impact on them. The UK Information Officer, which regulates data protection compliance in the UK, recommends carrying out an 'impact assessment' to determine this. This involves weighing the benefits or necessities of testing to the business against the privacy rights of the workers, and establishing whether any alternative less intrusive method would be effective. The Information Commissioner's Employment Practices Code recommends that:
- the collection of information through drug and alcohol testing is unlikely to be justified unless it is for health and safety reasons (but not necessarily pursuant to statutory requirements);
- post-incident testing where there is a reasonable suspicion that drug or alcohol use is a factor is more likely to be justified than random testing; and
- employers are advised to undertake and document an impact assessment in respect of testing.
Testing is more likely to be justified in jobs where health and safety is a particular concern and random testing is counter-indicated. As testing involves physically collecting a sample from an individual, an employer must seek consent to avoid the criminal offences of assault and battery. If an employee refuses to consent to a test, an employer may draw inferences from this. However, it is difficult to see how failure to give consent could justify disciplinary action if data protection legislation requires consent to be 'freely given'. An adverse inference may be drawn in the context of a wider investigation into the employee's conduct, however.
Data collated from drug testing should be treated with caution by employers. A positive drug or alcohol test does not per se indicate that an employee is not performing to the required standard or that they are necessarily guilty of misconduct. Employers therefore need to be wary of knee-jerk reactions to positive tests and ensure that full investigations are conducted before disciplinary action or performance management steps are instigated. Employers will also need to consider the parameters of what is acceptable usage (e.g. of prescription drugs which may have adverse effects on performance) and what is not. A reasonable investigation into the circumstances of a positive test will also reveal whether the matter is a health issue (an addiction which the employer should offer rehabilitative assistance with) or a conduct issue. In the recent case of Kuehne and Nagel Ltd v Cosgrove, the UK Employment Appeal Tribunal overturned a tribunal finding that a gross misconduct dismissal for substance misuse was unfair. They emphasised that the court will look behind the reasons for a zero tolerance substance misuse policy when considering the overall fairness of a dismissal. Earlier cases with similar facts underline the importance of employers conducting reasonable investigations into drug and alcohol misuse when using this as a ground for misconduct dismissal.
In summary, UK employers should ensure that they have comprehensive drug and alcohol misuse policies setting the parameters of their tolerance of consumption and establishing definitions of illegal substances. If testing is to be used, this should be explained in the policy, and the employer will need to ensure it complies with its obligations under the Data Protection Act 1998 in respect of processing sensitive personal data.