With the society norm of social drinking over the weekends it is of utmost importance for employers to be vigilant and protect the workplace from potential situations arising where alcohol is involved. As a result, a lot of employers, particularly where employees are required to operate vehicles or machinery, will seek to introduce a form of alcohol testing. As such, it is important to be aware of the practical implications and legislative implications for undertaking breath and other methods of alcohol testing and the importance of having an agreed written policy in place in relation to any such testing.
Employer’s Rights & Responsibilities
While an employer may feel that they have a legitimate need for such tests to be carried out, the question often arises as to whether or not an employee is obliged to submit to testing by an employer. It can be argued that the information gathered by an employer following a test is private to the person and is of no business of the employer. Essentially, it may not be the employer’s right to view what an employee has ingested into their body. Conversely, from the employer’s point of view, the information gathered after a test may be of vital importance for the protection of the workplace.
Health & Safety and test results
Section 13 of the Safety, Health and Welfare at Work Act 2005 outlines the provisions surrounding an employer’s duties in respect of workplace safety. This same section sets out the general duties of an employer in regard to the dangers created by an employee under the influence of an intoxicant while at work. The sections cover the fact that an employer is required, as part of a risk assessment of the workplace, to ensure “health surveillance” of his/her employees. “Health surveillance” would essentially involve a “periodic review, for the purpose of protecting health and preventing occupationally related disease, so that any adverse variations in an employee’s health that may be related to working conditions are identified as early as possible.” Based on the above section, an employer may be able to justify requiring an employee to undergo periodic testing, if there is a genuine safety concern for the business. What is critical for the practical application of testing is outlined in Section 23 of the Act, an employee should only undergo assessment by a registered medical practitioner and there is a need for the employee to co-operate with the assessment. This same section also covers the fact that there must be a “serious risk” to the safety, health and welfare of the person at work.
Alcohol & Drug Policies
It is crucially important that an employer has a set and distinct policy on drugs and alcohol outlined in an employee’s terms and conditions and/or in the company handbook. Importantly, it would not be sufficient to cite being under the influence of drugs/alcohol in the company disciplinary procedures as a misconduct offence. Rather, a specific policy is required. Equally, it is of critical importance that the employee is aware of such a policy and in this respect a specifically signed policy and/or a signed copy of a contract of employment or handbook which contains the policy will at least be required. Being able to establish an employee’s understanding of the policy is of vital importance to the reasonableness of an employer’s conduct when implementing alcohol testing. It is also critical that the periodic nature of any testing is clearly set out in a company handbook. To this end, it is advisable only to carry out testing if an employer has a set company policy on the issue. The policy, while covering the basics and explaining the reasons for the need for such testing, must importantly cover how the information will be gathered and what will happen to the information once gathered. In keeping with an employer’s legislative obligations, an employer must undertake any testing through a medical professional and that the information gathered is kept strictly private. An employer must be able to prove that the implementation of the testing procedures is necessary, transparent and proportionate.
Kennedy v. Veolia Transport Ireland(UD 240/2006)
Provisions on alcohol and drug testing were upheld as legitimate by the Employment Appeals Tribunal in the case of Kennedy v. Veolia Transport Ireland. In this case there was a clear Drugs and Alcohol Policy in place on testing for safety purposes and this policy was implemented with the agreement of the employees’ union. However, the employee had never received the actual precise policy. As such, the EAT concluded as follows:
“As it was accepted by the respondent that the claimant had not received a copy of their Drugs and Alcohol Policy the Tribunal has considered this case under the claimant’s contract of employment and the union agreement with the respondent both of which the claimant received at his induction on 16 February 2004. These make it clear that he was required to comply with the respondent’s procedures for drug and alcohol testing. The Tribunal is satisfied that the breath sample provided by the claimant was clear evidence that the claimant was in excess of the limit for driving a tram and that it was reasonable for the claimant to be required to submit to a urine test. Having considered the evidence the Tribunal is further satisfied that, by not completing the required urine test on 14 August 2005, it was reasonable for the respondent to conclude that the claimant had wilfully set out to avoid the urine test and that he was in breach of the procedure. Taking these factors into account it was reasonable for the respondent to conclude that the claimant was guilty of gross misconduct under the terms of the above-mentioned documents and to dismiss him.”
The key issue here was that the employer had taken reasonable steps to bring the policy to the employee’s attention. Importantly the EAT also recognised that there was a serious concern for safety in the workplace ay play here..
Conclusion
In summary, an employer must be able to stand over the reasons for why the testing is needed, that there was a legitimate workplace requirement, that the level of testing did not go any further than was necessary to protect this legitimate need and that the company policy had been sufficiently brought to the employee’s attention. If these steps are not taken then you could be faced with the scenario of an employee winning a claim for unfair dismissal notwithstanding the fact that they attended for work under the influence of an intoxicant.
Employers should seek advice from Peninsula Business Services when faced with any issues regarding alcohol in the workplace. Please phone the 24 Hour Advice Service on 01 8555050 and one of our experienced advisors will be happy to assist.
