Although there is no legislation which states that employers have the right to test employees for drug use, it is clearly recognised that certain job roles require this type of monitoring and therefore it is legal to carry out these tests.
Importantly, employers should have a written policy on the use of illegal substances in their organisation which, amongst other things, outlines the way in which employees will be dealt with should a drugs test be carried out and compliance with this policy should be ensured. As always, policies should not be unreasonable. In order for the policy to be taken seriously, no breaches should be ignored and the provisions of the policy followed.
Many employers find that random drug tests are a major deterrent to drug use due to the unpredictable instances at which they can be carried out. Random tests are just that – not triggered by any particular event or suspicion and will pick anyone from a group. It is important to maintain the unsystematic nature of random tests. Unfairly singling someone out can lead to claims of discrimination.
Drug tests need not be random, however, and are often run after an employee has been involved in a reportable accident, or where the employer may suspect that an employee is working under the influence.
Many employees will understand the requirement for a drug test because of the nature of their work, and look upon it as part and parcel of the job. There may, however, be a few who do not want to be tested. You cannot force an employee to be tested but in the event that you are met with refusal, you should not automatically assume guilt. Where it is a contractual obligation to provide a sample you can deal with the refusal via your organisation’s disciplinary procedure.
Tests can be done in various ways, using urine, blood, hair, saliva, etc. Where tests are carried out, they should always be done in a way that assures the dignity and confidentiality of the employee. Tests should be carried out in a private location, by a member of the same sex as the employee being tested. Consider any requests by the employee to have a witness present.
You should make employees aware that it will be considered a disciplinary offence if they are caught deliberately attempting to falsify results.
If a test is returned with a positive result, you should allow the employee the opportunity to offer an explanation. An employee taking medication prescribed by a doctor can sometimes give a positive result in a drugs test so it is important you determine the source of the result.
Where the result is evidence of drug taking, you should deal with the employee through your usual disciplinary procedure and, in circumstances where this is warranted, dismiss the employee.
For any further clarification, please call our 24 Hour Advice Service on 0844 892 2772.
by Nicola Mullineux
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