The law on drinking and driving is well known. However, the rules apply just as much to driving under the influence of drugs. Companies are responsible for their employees and may need to test for compliance, but they need to follow a fair process when doing so. Chloe Themistocleous, an associate in the employment department of Eversheds Sutherland, explains
Kenneth Ball, a bus driver that suffered from diabetes and had over 20 years’ service, was dismissed in July 2017 after testing positive in a random drugs test conducted by his employer, FirstGroup in Essex, in accordance with its drugs and alcohol policy. Kenneth always denied the allegations and said he was shocked by the results, as he had never voluntarily taken any drug – nor would it be safe for him to do so due to his diabetes. He was therefore adamant that there must be an alternative explanation for the positive test result. [wlm_nonmember][…]
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The drug test conducted was a saliva swab test. Kenneth claimed that it was possible that the drugs had got into his saliva after he handled contaminated banknotes on the bus, as he frequently licked his fingers to stop the bleeding after pricking them with a needle in order to check his blood sugar levels. To prove this, Kenneth paid for two private hair follicle tests to be conducted. Hair follicle tests can determine if drugs have been taken over an extended period. In comparison, saliva swab tests can usually only determine recent drug use and are generally deemed to be less reliable. A hair follicle test should therefore have given a more reliable answer as to whether or not the driver had taken cocaine over an extended period. Both the hair follicle tests came back with negative results.
Kenneth provided both tests to First Group during the disciplinary process. However, they refused to take them into consideration on the basis that their policy did not expressly permit the use alternative testing. They also did not consider the fact that Kenneth’s high blood pressure, age, long service, exemplary disciplinary record and the surprise of all his managers made it more likely that he was telling the truth when making their decision to dismiss. FirstGroup claimed that it had no choice but to dismiss Kenneth as a result of the positive test.
Dismayed by the outcome, Kenneth made a claim for unfair dismissal in the East London Employment Tribunal. The Tribunal ruled that FirstGroup had unfairly dismissed the employee and he was awarded £37,000 in compensation. The Tribunal found that in the circumstances the employer was required to look behind the original drug test outcome. The Tribunal noted that FirstGroup had failed to follow its own procedure in not allowing the driver the ability to challenge the drug test result (by identifying an independent laboratory for further testing). It therefore should not have simply dismissed considering the secondary tests provided by Kenneth. Doing so suggested the outcome was predetermined from the outset.
Drug and alcohol policies and testing – getting it right
The above case has made many employers question whether they should have a drugs and alcohol policy if they do not have one, or if the policy they have in place already is lawful and sufficient.
So, what are the key questions and considerations for employers when deciding whether or not to have a drug and alcohol policy at their workplace?
Drug and alcohol policies at work are commonplace
Many employers now have drug and alcohol policies, especially where they have employees in roles where there are greater health and safety risks related to working whilst under the influence of drugs and alcohol – driving or roles where employees operate potentially dangerous machinery are cases in point. However, it is now not unusual to have the same policies in corporate environments.
The legal perspective on driving under the influence
It is illegal for an adult to drive with more than 80mg of alcohol in 100 ml of their blood (or 50 mg of alcohol in 100 ml of blood in Scotland). Also, it is illegal to drive if either they are unfit to do so because someone is taking legal or illegal drugs or has certain levels of illegal drugs in their blood (different levels apply to different drugs).
Testing employees both before employment commences and during their employment
As to when an employee can be tested, it depends on the type of work to be undertaken by the employee. It may not be appropriate for all employers to have a blanket policy for testing all employees. However, it may be appropriate where staff drive or operate machinery or where working under the influence of drugs could cause injury to themselves, colleagues or third parties or could seriously damage the employer’s business. Tests can be conducted both before employment commences and during employment.
Seeking employee consent to test for drugs and alcohol
Employers cannot force employees to participate in the test. That said, employers usually will get employee agreement to participate in the test at the outset of their employment through their contract, stating that refusal to participate in a drug test would be a misconduct offence (just as a positive test result would be). This should be replicated in the disciplinary policy.
If the employer wishes to introduce testing part-way through the individual’s employment as a term of their contract, they will be required to vary the employee’s terms and conditions of employment. This can be done by consent or by putting the employee on notice of the change.
Giving notice of the checks
As to whether employees have to be given notice of a check, this is largely dependent on the drug/alcohol testing policy in place.
Employers should be clear when they will seek to test employees in that they should specify:
• That all employees in certain roles at set periods (every six months) will be tested;
• That there is random testing of randomly selected employees at random times;
• Testing after an incident; or
• That anyone under the suspicion of being under the influence of drugs and alcohol at work will be tested.
Performing the test
The Information Commissioner’s Office recommends that any tests undertaken should be based on reliable scientific evidence about the effect of particular substances on workers. This therefore usually means that employers have suitably qualified persons attend the workplace to conduct tests.
Tests should be as unobtrusive as possible – urine testing is therefore usually the norm for drug tests and breath for alcohol although it is noted that blood tests are largely held to be more accurate. Tests should be limited to those substances and the extent of exposure that will meet the purposes for which the testing is conducted. Also, workers should be told what drugs they are being tested for. If there is a right to test and the employee refuses, this can be dealt with as a disciplinary matter.
Dealing with positive tests for drugs and alcohol
Some employers take the view that employees with alcohol/drug dependency issues should be supported and provided with assistance from work to overcome such problems. They will therefore encourage employees be open about their problems and seek help and may also refer employees to an occupational health advisor and seek treatment and counselling for employees.
Alternatively, some employers do not offer the support noted above and will treat these matters as a disciplinary matter only (either misconduct or performance).
Either way, it is important for employees to have a clear disciplinary policy/procedure when disciplining employees for alcohol and drug abuse.
It may be possible to dismiss an employee for drug and alcohol use, but this will depend upon the nature of their role (are they posing a risk to others), the severity of the abuse and the criminality of the actions (are the drugs illegal or prescription).
Handling drug and alcohol cases
With all of this in mind, it is clear that employers must have a well-defined policy and it should be clear on whether or not the employer has a contractual right to test employees (with a refusal to take a test being a disciplinary matter itself).
The policy must be made available to employees throughout their employment and during any disciplinary process, and managers dealing with an investigation, disciplinary and/or appeal hearing must understand the policy requirements. At the same time, decision makers must appreciate that if they are dismissing an employee for misconduct (being under the influence) they must have a reasonable belief the employee is under the influence. A reasonable belief can only be based on a reasonable investigation. Decision makers must look at the whole picture before making a decision, even where there is one damning piece of evidence, such as a positive test result.
Employers should be mindful that a factual finding of gross misconduct does not always warrant dismissal. It’s important to be consistent with how employees are disciplined in relation to similar offences (subject to employee personal mitigation) and employers should maintain employee confidentiality on sensitive matters such as addiction.
Lastly, employers should be mindful that whilst addiction to drugs and alcohol is not a disability itself, employees who suffer from such addictions may have other disabilities leading them to their addiction (such as mental health problems) that give them additional protection under equality legislation.
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