We have recently been asked a number of questions about drug testing of employees and agency workers. There are numerous and complex legal issues to bear in mind, and we provide here a brief overview.
Drug abuse in the workplace
Abuse of controlled substances is of course a criminal offence, and it would appear to be reasonable for an employer to dismiss the offending employee where this criminal offence takes place at or during work. However, regardless of the severity of the misconduct, it remains important to follow the correct procedures relating to dismissal of employees.
In the case of an agency worker, a recruitment consultancy should ensure that the right terms are in place in order to allow the recruitment consultancy to terminate an assignment in these (and other) circumstances.
Can you require an employee or agency worker to take a drug test?
Particular care should be taken in this area to avoid breaching data protection and human rights law.
Under the Data Protection Act 1998 (“DPA”) a sample or other information relating to a person’s health would be classed as “sensitive personal data”. This means that in addition to the normal data protection rules, a set of enhanced protections apply. Processing of sensitive personal data should only take place where one of the requirements of Schedule 3 of the DPA are met. For example where the individual has given their explicit consent to the testing including the substances they are being tested for and the consequences of a failed test.
In addition it is worth noting the existence of Article 8 of the European Convention on Human Rights, which provides for a right to respect for one’s private life. Breaches of Article 8 may only be justified where the action is a proportionate means of achieving a legitimate aim. It is likely that compulsory drug tests may be difficult to justify unless there is some kind of health and safety issue at stake due to the nature of the role. For example in the case of an airline pilot, the drug test may be considered a proportionate means of achieving a legitimate aim – that is ensuring the health and safety of the passengers.
Can you dismiss an employee or agency worker based on the results of a failed drugs test?
As with any dismissal, employers should ensure that they are able to demonstrate that the dismissal was fair and that it acted reasonably in taking the decision to dismiss. To support this, employers should have a clear anti-drugs staff policy in place, to which the employee’s attention should be drawn. In addition it would also be helpful if the employer can demonstrate evidence that drug abuse may have hampered the employee’s performance.
As above, in the case of agency workers, a recruitment consultancy should ensure that the agency worker is engaged on terms that would allow the agency to terminate in these circumstances.
For legal advice on employee dismissals, data protection and agency worker supply, contact Lawspeed on 01273 236236.