Drugs & Alcohol policy - help

[BuckyBarnes]

Hi. Sorry in advance for the lengthy post.

I work in middle management in a building firm. The firm has announced they are introducing a Drugs & Alcohol policy and randomised drugs screening. Drugs policies are a perfectly normal for our industry, but I am worried about the bullish (and seemingly ill thought out) "zero tolerance" stance the firm is taking.

The firm has a drugs policy at the moment (cobbled together from other company's policies by the looks of it). It states that employees should do no illegal drugs activity that affects their work, or do drugs on work premises. All well and good, but then it then has one line that says that substances are "not to be consumed outside of work".

I know some people in the company are light recreational cannabis users (myself included). I am totally confident that this does not affect their work, and I am totally confident that this usage happens outside of work time and away from work premises, and that they are never affected during work hours. It is also worth repeating that these are "low risk" roles. We do not go onto building sites. The only machinery they operate are laptops and the office kettle. We also have no exposure to the firm's clients - these people work in head office or at home.

I have read that the firm would need to prove that:

1. the employee's work was affected by the drug use; and that
2. the employer would have to prove that out-of-hours drug use was a health and safety risk (ie, were they to be in charge of a crane for example).

If neither of these things were provable, I've read that the firm could have a case brought against it in the event of a sacking.

So I guess I'm asking for a bit of clarity as I am finding it difficult to find any concrete information. I know we have to do the tests, that's fine. But there seems to be a grey area between "failing the test" and "court case", and any clarity from the company (or my management) is very thin on the ground.

Are company's within their rights to have "zero tolerance" policies with low-risk staff if they cannot prove when the drugs were consumed, or whether they had a negative effect on the work?

Are there legal precedents for this kind of situation?

Would they have to go all the way through to a dismissal to be able to argue our case? What usually happens in these situations?

If anyone can share their experiences or shed a little light on this it would be much appreciated. These people are loyal, long-serving and hardworking, and I worry that they are going to be unduly punished for something that has no effect on their work.

Thank you.

BB

[Sangie595]

Re: Drugs & Alcohol policy - help

If you wish to examine this in a court of law, then you need to fail a drugs test and wait to be dismissed. Alternatively, you might be able to refuse to accept the policy, get yourself dismissed that way, and test it in court.

However, I would be very cautious about "what you have read". It is entirely possible to dismiss on the basis of reputational damage, and that can include things you do outside the workplace. The possession of the drugs you are referring to here is illegal, and testing positive would support the view that you had possessed them. You would be asking a court of law to support your personal possession and use of illegal drugs - whether or not it is in your own time, that is a dangerous strategy to wish to test in a court of law.

Whatever the outcome of that, you will be without a job, and do you truly, even if you win a claim of unfair dismissal, want everyone to know that you use drugs and that was the cause of your dismissal? I doubt employers will be lining up to take you on. And whilst tribunals don't usually attract any media attention, I think that you are dicing with death ( of your career) to assume this wouldn't make a juicy story.

To be honest, what anyone else does is not your business. Spearheading a fight for everyone else is poor judgement unless you are a union official; and possibly even then. You need to decide what you will do. Your options appear to be, get a new job that doesn't drugs test, give up illegal drugs, or put in a grievance / refuse to accept the policy. The latter option will almost certainly result in your early "random" selection - your employer will undoubtedly be suspicious about your attitude. That route will, again almost certainly, lead to your being disciplined or dismissed. Which will give you an opportunity to find out what a tribunal thinks about the fairness of that dismissal.

Sorry, you aren't going to get a definitive answer. Because it will be up to the tribunal to decide based on all the information in front of them. You don't have the policy, you haven't been dismissed, and so you also don't know how the process was conducted - because it hasn't happened yet.

I suppose I should warn you that even if you were to win, you would almost certainly get deductions from any award for contributing to your own dismissal; and tribunals never give awards at the level most people think they do. The average is around £6-7k, and if you got a deduction made, it could be a lot less than that. Not a lot of money to make up for unemployment.

But now it is up to you, and you must decide. Btw, personally I couldn't give a stuff what you do with drugs in your life, so don't assume that my answer is dictated by any notions around drugs on my part. But assuming your employer can't do this is very dangerous. Win or lose, you could lose. Getting a reputation for taking drugs is not something designed to enhance employment prospects.

[BuckyBarnes]

Re: Drugs & Alcohol policy - help

Thanks for getting back to me. I think you're taking my question from the wrong angle though. Maybe I didn't phrase my question properly. I'm not asking about what I need to do to get this in to a court, what would happen to my reputation if I were dismissed, or how much money I could claim.

I'm asking about the legal basis for an employer to test people for something they do in their own time that has zero impact on the work they carry out there.

[wales01man]

Re: Drugs & Alcohol policy - help

Drugs like alcohol stay in the system for some time who knows how long it takes to get tothem and their effects out of someones system?

[BuckyBarnes]

Re: Drugs & Alcohol policy - help

Ok, again that's not what I'm asking.

[des8]

Re: Drugs & Alcohol policy - help

https://www.gov.uk/monitoring-work-workers-rights/drug-testing:
Employers have to have consent if they want to test for drugs. Usually this is when they have a full contractual health and safety policy, which should be in the contract or staff handbook.
Employers should:

• limit testing to employees that need to be tested
• ensure the tests are random
• not single out particular employees for testing unless this is justified by the nature of their jobs

Workers can’t be made to take a drugs test but if they refuse when the employer has good grounds for testing, they may face disciplinary action.

[wales01man]

Re: Drugs & Alcohol policy - help

Ok, again that's not what I'm asking.

Problem with drugs tests at the workplace is it will pick up drugs if they are in the system if you refuse a test they may think you have drugs in your system that affect your work.
If the police tested you driving to work the day after you used drugs if you do of course and you fail you lose your licence not quite the same as at work but still a positive test.

[Sangie595]

Re: Drugs & Alcohol policy - help

Thanks for getting back to me. I think you're taking my question from the wrong angle though. Maybe I didn't phrase my question properly. I'm not asking about what I need to do to get this in to a court, what would happen to my reputation if I were dismissed, or how much money I could claim.

I'm asking about the legal basis for an employer to test people for something they do in their own time that has zero impact on the work they carry out there.

No, I understood your question perfectly. I think you misunderstood the answer. The only way of determining the legal status of drugs testing is in a court of law. So it is all about getting them into court and the outcomes of such an action. There is no law that says that they can't do this. So the only backstop is whether a dismissal is fair or not.

[R0b]

Re: Drugs & Alcohol policy - help

The answer to your question is not a one-size-fits-all and all of the relevant circumstances need to be taken into account.

Adding to what Des has already said, testing of drugs and abuse should be limited to certain circumstances where the influence of drugs could have a health and safety impact. You've said that you work in middle management and I would say that where the drugs and alcohol could have a serious impact on the business and its reputation, then it may be justified in having a zero tolerance policy. Testing would require your consent however it must be justified, proportionate and necessary to carry out the testing given the intrusive nature of it. Refusing to agree a drugs or alcohol test may be reasonable grounds for misconduct and disciplinary matters could be taken.

There is also the element of data protection that the company must adhere to, and it might be possible that any results could fall under the heading 'sensitive data' which means there are more stringent requirements when gathering and processing someone's personal data.

So to answer your question generally, companies can have zero tolerance policies (the company I work for does, particularly as we have machine operators and drivers carrying dangerous substances) provided that your company can justify why a drugs/alcohol test should be done, then they may have grounds to dismiss you should you refuse to do so. It would be up to you to bring a claim for unfair dismissal provided you satisfied the two year qualifying period.

On a side note, I have been told that some substances such as cannabis can linger in the system for up to 3 months and a slightly different test which takes longer to carry out (and more expensive), would be required to determine how long it has been in the system. Whether that's true or not I don't know but it seems plausible.

Below is a bit more information if you haven't seen it already

Drug Misuse at Work (see page 6 on the relevant law)- http://www.hse.gov.uk/pubns/indg91.pdf

ICO Employment Codes of Practice (see page 92 para. 4.4 on drug testing) - https://ico.org.uk/media/for-organis...tices_code.pdf