Drug and Alcohol Testing

George Heron

George Heron

Email Click to email
Phone 01952 566918

31 August 2016

It is reported that up to 17 million working days are lost each year as a direct consequence of alcohol-related sickness. The true cost of this to employers is huge and, therefore, it is not surprising that many employers wish to test their employees in the workplace. Of course, it is not only alcohol that can be tested for and testing can also show the presence of a range of illegal drugs.

However, employers cannot simply unilaterally impose a system of invasive testing and act with impunity. Health data constitutes ‘sensitive personal data’ and a condition under the Data Protection Act is therefore required in order to process this. One such condition permits processing where this is “necessary in order to perform any rights or obligations imposed or conferred by law”. This covers steps taken to ensure the Health and Safety of workers.

This is in keeping with government guidance which states that the protection of health and safety is one of the few circumstances in which drug or alcohol testing is likely to be justified. It is therefore far more likely that an employer will be able to justify such testing in safety critical roles, such as those involving machinery or transport.

It is also stated that targeted testing after an incident that gives rise to suspicion is more likely to be justified than random testing. Any random testing that is deemed necessary should genuinely be random. Describing a testing regime in this manner but then targeting certain employees is described by the government guidance as being “deceptive and unfair”.

Finally, should you wish to carry out testing of this nature, it is strongly advisable to incorporate this into your contracts of employment. By including the requirement to undergo such tests, you can state that an employee’s unreasonable refusal to comply may amount to misconduct. It must be stressed that you should not force an employee to submit to a test – you may find yourself facing a criminal charge for assault!

At Alpha, we have a vast experience in providing bespoke, practical advice on HR and employment law issues. This includes providing specific advice on how to implement a drug and alcohol screening policy. We are proud of our commercial outlook and do not sit on the fence. If you would like to have Alpha on your side, please feel free to contact us.

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