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Drug and Alcohol testing – the dangers of sticking strictly to policy

For perhaps glaringly obvious reasons we tend to see a sharp increase in employer queries relating to failed drug and alcohol tests during the festive period. Whether it’s a result of employees getting in the festive spirit or simply celebrating another office party without telling their boss exactly what they think of them, employees tend to enjoy themselves a little bit more at this time of year.

Employers have a duty of care under the Health and Safety at Work etc Act 1974 to provide, as far as is reasonably practicable, a safe place of work and safe systems of work for their staff. Owing to this, if for example, an employer knowingly allows a member of staff under the influence of alcohol or drugs into the workplace who subsequently injures or puts other staff at risk of harm, the employer or indeed individual directors or managers could in turn be prosecuted.

The topic itself is perhaps more important than employers realise. Whilst recent data on the subject is scarce, an historic report by the Health and Safety Executive found that 29% of those under 30 had reported drug use in the previous year. The use of alcohol alone is estimated to cause between 8 - 14 million lost working days in the UK every year, raising the issue of not only health and safety breaches but loss of productivity by employees. 

It is clear to see therefore why drug and alcohol policies are becoming more popular with employers. But with the implementation of such policies comes risk, especially when disciplining or dismissing staff for testing positive for drugs and alcohol.

Below we look at some recent cases to hopefully stop your company making mistakes during the disciplinary process and saving you from an expensive unfair dismissal claim.

Ball v First Essex Buses Limited

This Employment Tribunal case recently made national and local news owing to the Claimant successfully claiming unfair dismissal despite failing a drugs test.  Mr Ball was a bus driver who tested positive for cocaine. He was a 61 year old diabetic who required blood prick tests every two hours to check his blood sugar levels. As part of his defence, Mr Ball put forward a theory, amongst others, that bank notes contaminated with cocaine may have been to blame for him failing a drugs test. In an attempt to prove his innocence, Mr Ball provided a hair follicle test which showed no traces of cocaine in his system. This test was ignored by the bus company as it had not been done by their providers. A subsequent internal appeal also failed.

In its judgment, the Tribunal were critical of First Essex Buses in the way they carried out the disciplinary process. Although the company’s drug and alcohol policy was silent on other methods of testing, they told Mr Ball that it was not within their policy to accept alternative tests. This was technically not correct, and it was deemed something a reasonable employer should have considered.

Given the circumstances, in addition to Mr Ball’s 21 year unblemished record, a reasonable employer should have re-tested the employee. The closed minded decision making of the disciplinary chair, along with the belief that dismissing after a positive test was black and white, was critical to the finding of unfair dismissal.

The judgment itself is extremely critical of the General Manager’s involvement in the process and a good example of what not to do as an employer can be found from paragraph 52 of the judgment onwards. The judgment is available HERE.

McElroy v Cambridgeshire Community Services NHS Trust

Is turning up at work smelling of alcohol a gross misconduct offence? Not in the circumstances of this case.   Mr McElroy was a healthcare assistant for the NHS Trust. The Trust’s disciplinary policy stated that being unfit for duty through the effect of drinking alcohol was considered a gross misconduct offence.

When considering what a reasonable employer would have done in the circumstances, the Employment Tribunal found that simply attending work smelling of alcohol would not amount to gross misconduct in the absence of evidence of an adverse effect on the employee's ability to do their job (being unfit for duty). The Tribunal was also critical of the NHS’s disciplinary process in adding an additional charge of failing to attend occupational health, without making the employee aware that this would also lead to a disciplinary.

The key point to take away from the above two cases is the difference between testing positive for drink/drugs and actually being unfit to perform your duties. Case law is heading in a direction more supportive of the individual and employers should ensure that they do not jump to conclusions before all of the facts are ascertained.

Whilst the above two cases are both employee friendly it is worth noting that they are both first instance cases which do not need to be followed by other Tribunals. It is only when cases reach the Employment Appeal Tribunal (EAT) stage that they becoming binding on other Tribunals.

O'Flynn v Airlinks the Airport Coach Company Ltd

I will leave you with one more case, this time from the EAT going all the way back to 2002. Ms O’Flynn was a customer care assistant for Airlinks the Airport Coach Company Ltd. After being dismissed for testing positive for cannabis, which she had admitted taking on a weekend whilst off duty, Ms O’Flynn failed in her claim for unfair dismissal at the Employment Tribunal.

At the EAT Ms O’Flynn claimed that such testing went against her right to a private and family life under Article 8 of the Human Rights Act 1998. This was a very interesting argument. After all, isn’t your private life not what Article 8 was meant to protect? There was one slight issue however. When Ms O’Flynn tested positive for cannabis, the Human Rights Act was not yet in force, hence the Tribunal could not consider the defence.

The Tribunal did go on to comment, however, that any policy drafted by an employer should not interfere with an employee’s private rights. This was expected to leave the door open in the future for challenges under the Human Rights Act.  To date however there has not been a successful appeal on this point. Commentary since this judgment tends to indicate that an employer would have the right to implement policies that interfere with employees' private rights, however such interference must be justifiable.

Tis the season to be jolly! Or perhaps not.

What should you be doing now?

For those employers who have already implemented D&A policies, the above cases should always be considered before coming to a decision on dismissal and/or disciplinary sanctions.

If you are an employer who does not yet have such a policy, don’t panic, you are still in the vast majority here in the UK. If you are considering bringing in a policy, Section 4.4 of the ICO Employment Practices Code (linked at the bottom of this article) is recommended reading. The Code assists in explaining the requirements and obligations to staff when implementing the policy and explaining the potential outcomes to staff.

Whilst outside the boundaries of this article, careful consideration must also be given to GDPR and in particular the use of your staffs’ sensitive personal data when processing the results.

What does this mean for your business?

Not every business requires a drug and alcohol policy. Historically, only businesses where safety is seen as a priority, such as in factories where heavy machinery is operated, job roles where driving is involved or where public safety is at stake.

We have experience of advising companies of all sizes on drug and alcohol policies. If you wish to discuss if they are right for your company, get in contact with any member of our team.  

Recommended Reading
A link to the Employment Practices Code can be found HERE.

 

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.