Employers have a general duty under the Health and Safety at Work, etc Act 1974 (HSWA) to ensure, as far as is reasonably practicable, the health, safety and welfare of employees. If an employer knowingly allows an employee under the influence of drugs or excess alcohol to continue working, and this places themselves or others at risk, they could be prosecuted. Similarly, the HSWA requires employees to take reasonable care of themselves and others who could be affected by what they do.
The Corporate Manslaughter and Corporate Homicide Act came into force in 2008 and could be used against employers who fail to take reasonable steps to ensure that their employees are fit to carry out their duties, particularly with regard to public safety.
The Misuse of Drugs Act 1971 covers nearly all drugs with misuse and/or dependence liability. The Act makes the production, supply and possession of these controlled drugs unlawful except in certain specified circumstances. Furthermore, if an employer knowingly permits the production or supply of any controlled drugs and the smoking of cannabis or certain other activities to take place on their premises, they could be committing an offence.
Employees cannot be forced to take drug and/or alcohol tests unless it is a condition of their employment and is set out in their contract of employment, or if they have given their consent.
In safety critical industries, drug and alcohol testing should be carried out on employees carrying out jobs in which impairment due to drugs or alcohol could have disastrous effects for the individual, colleagues, members of the public and the environment, e.g. drivers and/o operators of machinery.
The Road Traffic Act 1988 specifically states that any person who, when driving or attempting to drive a motor vehicle on a road or other public place or when in charge of a motor vehicle on a road or other public place, is unfit to drive through drink or drugs is guilty of an offence.
The HSE guidance INDG382 Driving for work — managing work-related road safety states that employers should ensure that their drivers are fit to drive, whilst The Safe Operator’s Guide explains the advice from VOSA and the Traffic Commissioners to operators, and states: “We recommend that you introduce random alcohol and drugs testing and develop such a policy in consultation with the workforce/trade union. When setting your policy for alcohol testing you should decide whether to use the UK legal limit or the lower limit considered safe in most European countries. Drivers who start work early in the day are particularly at risk of having excess alcohol left in their system from the night before.”
The Traffic Commissioners may require operators to submit written evidence that they have effective drugs and alcohol policies in place.
Companies that are concerned about alcohol or drugs in the workplace should have a drugs and alcohol policy which contains a clear outline of the aims and purposes of the policy and set out the rules and procedures around alcohol and/or drug use. The policy on testing should outline:
- Who is covered by the policy and whether a particular group (eg employees carrying out safety-critical work) is subject to tighter restrictions;
- What constitutes misuse;
- The testing procedure and why the test is necessary;
- What happens if a test proves positive and the disciplinary action that may be taken.
If an employee fails an alcohol or drugs test, the employer may be able to dismiss them summarily for gross misconduct, particularly if they work in a safety-critical profession and their drug use has noticeably impacted upon their job performance. However, the employer should always ensure that it follows the Acas Code of Practice on Disciplinary and Grievance Procedures, together with any of its own policies and procedures, before taking a decision to dismiss.
Alcohol and drug testing is widely used in safety-critical and other occupations where the public is entitled to expect the highest standards of safety and probity. In addition to their purpose of preventing accidents, these tests have the added advantage of maintaining public confidence.
Testing must take account of legal considerations and be either a contractual requirement or carried out with the employees’ consent. The testing should be limited to the employees who need to be tested to deal with the risk and should not be discriminatory. Random tests should be genuinely random.