Alcohol and Drug Testing at Work – read our guide…

Alcohol and Drug Testing at Work

As an employer, you need to protect your business from various threats and risks. One of those risks may be based on the suspicion that an employee is under the influence of alcohol or drugs. Alcohol and drugs testing are not as easy as you would think. In fact, testing could pose more of a risk to your business if you fail to carry this out correctly.

Implementing alcohol and drug testing is high risk and you should not enter into this lightly.

Employees under the influence of alcohol or drugs can impact your business in many ways, as detailed below:

  • Colleagues having to work harder to cover poor performance
  • Colleagues being directly affected by the behaviour of the employee
  • Poor performance, such as unacceptable quality and output of work
  • Potential theft issues
  • High absence levels
  • Lack of motivation
  • If you believe an employee might be under the influence of alcohol or drugs, then continue reading our blog to find out what you should do to protect your business.

Your reasonable belief or suspicion that an employee is under the influence

You may have managers reporting their concerns to you, which may have been raised by other employees in relation to an individual. You may have noticed yourself that the employee is acting out of character. Your reasonable belief may be limited to a pattern, such as issues on a Monday or at the start of a shift, with no further belief that the employee is under the influence for the remainder of the working week.

Signs of drug use:

This will vary from person to person – however, the following signs are a good indication something is not quite as it should be:

  • Mistakes with work
  • Looking unkempt, and not as responsive as normal
  • Smell – some drugs leave a certain scent on a person and their clothes for a while after use
  • Anxious and fidgeting
  • Poor concentration
  • Poor timekeeping
  • Irritability
  • Signs of being under the influence of alcohol:
  • Slurred speech, fumbling and stumbling
  • Spending excessive time in the toilet
  • Inability to complete a task
  • Redness in the face
  • Falling asleep
  • Bloodshot eyes
  • A smell of alcohol

Legal basis and justification

You simply cannot just decide one day that ‘enough is enough’ and jump straight into alcohol and drug testing. The new data protection laws now have additional hurdles to jump.

The Data Protection Employment Practices Code states that “The collection of information through drug and alcohol testing is unlikely to be justified unless it is for health and safety reasons”.

Before you commence any alcohol or drug testing, you will need to identify your legal basis for processing the employee data under the General Data Processing Regulation (GDPR). Alcohol and drug test results are regarded as “health data”, so are deemed a special category of personal data under the General Data Protection Regulation.

The Data Protection Act 2018 requires employers to have a policy document in place that explains how it will comply with the principles of the GDPR in relation to the special category personal data. Furthermore, it requires employers to detail the retention and erasure of the special category of personal data.

As an employer, you will be required to complete a privacy impact assessment. By its nature, the processing is likely to be deemed high risk, and this will help you to ensure the scope and method of testing – and the way in which test results are handled – are appropriate and justifiable.

Whilst health and safety are likely to be the most justifiable legal basis for processing employee data, you may potentially have further justification for alcohol and drugs testing. Namely, where use of these substances would breach the employment contract or cause serious damage to your business. However, the code stresses that such justification will be exceptional.

If you choose to rely on your legitimate business interests as a legal basis for testing, you must make sure this is referenced in your privacy notice. Employees must be aware they have the right to object to the processing of their personal data and, if you determine that your legitimate interests override the interests, rights and freedoms of the employee, you must be able to establish this through a privacy impact assessment.

Alcohol and drug testing

There are two types of alcohol and drugs testing, namely, ‘with cause’ and ‘random’.

“With cause” alcohol and drug testing – where you have a reasonable suspicion that an employee is under the influence and the consequences are likely to result in a health and safety concern. This process must be handled carefully and must be supported by the relevant measures required to meet the General Data Protection Regulation. There is a risk that an employee could claim constructive unfair dismissal, if this is poorly handled.

“Random” testing – should be based on health & safety as a legal basis and should be limited to those employees with safety critical activities as part of their role. As an employer, you must be careful that any random testing is not discriminatory. This type of alcohol and drugs testing is where you may use your legitimate business interests or contractual requirements as justification for testing.

Any action taken against an employee found to be under the influence of alcohol or drugs is likely to be challenged in an employment tribunal, if you fail to fulfil data protection requirements.

Where do you start the drug testing process?

You must document the alcohol and drugs testing process; it may in the employee handbook, it may be in the contract, or you may refer to it within health & safety documents. Your policy needs to be clear on when and why drug testing will take place and if it is “random” or “with cause”.

High-risk work environments are able to justify and implement random drug testing on employees, especially where health & safety is of paramount importance. For example – logistics including HGV drivers; the warehouse environment where there are various vehicles, such as fork lift truck, counter and reach trucks; manufacturing environments with high-tech machinery; and employees that drive for your business.

Specialised testing company

You should use a qualified professional to conduct any alcohol or drug testing. A specialised testing company will ensure the minimum invasion of privacy for the employee and, along with your own procedures, keep confidential information secure.

Considerations include ensuring the results cannot be tampered with, that any sample is from the employee believed to be under the influence, and to ensure there is accurate laboratory analysis and interpretation of the results.

You will also need to ensure that any third part company meets its obligations and responsibilities under the General Data Protection Regulation.

Processing and retention of the results must be limited to those who need to know. The retention time must be detailed in your retention policy.

Disciplinary action

If the results come back positive, you must determine whether it warrants a formal disciplinary procedure. Consider this carefully – do the results determine that the employee was under the influence whilst at work or directly before the start of a shift? This is different to an employee being under the influence at a point not directly related to their working shift.

If you’ve identified an employee to be under the influence during or directly before the start of a shift, you now have to commence a formal disciplinary procedure. If you dismiss an employee based on the result with no procedure, this will be considered unfair. If the employee has two years or more of service, there is a potential for an unfair dismissal claim against you.

Read our previous blog about conducting a disciplinary procedure.

This blog only touches on the requirements of alcohol and drug testing for an employer. If you need further guidance or hands-on HR support, then please contact us on 01455 231982 or 07716 918272. You can email us too, if that’s easier for you jude@jrhr.ltd or use our contact form.

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