Quote:Just another case of the creeping fascism predicted by Orwell.

Geli Wrote:The only people with a real vested interest in testing are the private testing firms!

Quote:Construction industry giants, including Bovis Lend Lease and Laing O'Rourke, have introduced random on-the-spot drug and alcohol tests on their sites following implementation of low or zero-tolerance substance misuse policies. However, dismissals following a positive result may not always be fair, and the terms of any policy may also give rise to a conflict between public safety and privacy issues. So how can an employer introduce and implement a policy to avoid findings of unfair dismissal?
Employers that knowingly allow employees to carry out safety-critical work whilst under the influence of drugs or alcohol may be prosecuted under the Health and Safety at Work Act 1974. As such, robust policies and random on- the-spot checks may assist to establish a defence, and a positive result will also help to satisfy part of the legal test for a fair conduct dismissal.

Introducing a policy

As a general guide, a policy should be clear in relation to who will be tested, when and in what circumstances they will be tested, and the method of testing. Employers should also ensure that all employees are aware of what level of reading will constitute a positive result, the category of offices - for example, gross misconduct, and the consequences of not submitting a test.
If a zero or low-tolerance approach is to be adopted, the policy should clearly state that having drugs or alcohol in the system above the stipulated limit will be considered gross misconduct, which may result in summary dismissal.
The policy should be incorporated into the employment contract, following consultation with health and safety representatives and employees. This will ensure that employees are aware of the policy and its consequences and will give employers a contractual right to test employees.
The policy should stipulate testing for all employees in safety-critical roles. It would be unreasonable to undertake random tests in respect of roles which do not have associated safety risks.
Sanction

Where misconduct arises from alcoholism, employers should take a cautious approach, exploring all the circumstances before making decisions, particularly as there may be underlying causes that may give rise to disability discrimination claims. Consideration may be given to allowing employees to keep their jobs if they submit to courses of treatment. Where this route has been pursued and there is no improvement, employers should note that dismissing for a further positive test will not automatically be a fair dismissal as it will depend on the circumstances in each case.
In order to dismiss fairly where an employee refuses to be tested, the right to do so should be set out in the policy.
However, even where there is a contractual right to test employees, if an employee in a non-safety-critical role refuses to submit to a test and is subsequently dismissed, a tribunal is likely to find that the dismissal is unfair, and also that there has been an infringement of the employee's human rights. This is because the low public safety concern is likely to be considered disproportionate to requiring invasive tests, so careful consideration should be given as to what roles the policy should apply.
Privacy rights

Employers should be aware that positive test results may be returned in instances where alcohol or drugs have been taken outside of work. A zero or low-tolerance approach in this instance may result in a dismissal, and this could be open to challenge for infringement of the right to privacy under human rights laws.
If the object of a drugs and alcohol policy supported by random testing is to ensure that the employee is able to undertake the duties associated with their role safely, it is likely to be considered proportionate and not an invasion of privacy.
Test results may be affected by prescription drugs, and employers should consider making allowances for this.
Most importantly, any policy should be clear and fully communicated to all employees.
Training should be given to employees and managers to highlight the risks to themselves and their colleagues and the possible causes and consequences of being over the limit on drugs or alcohol at work. Employers should follow the policy, apply it consistently and adopt a procedurally fair approach to any related dismissal.