Can you be legally drug tested at work? Employer and Employee rights! ICDS can help!

Can your company legally ask an employee to take a drugs test at work? And what about if you fail a drugs test?

It will depend on your contract, whether you obliged to undertake a test and whether you feel you are being unfairly targeted.

"Employers must ensure that its employees work in a safe environment, so some will want to carry out drug and alcohol testing," said Damian Phillips, a Partner at the Cardiff-based law firm Darwin Gray.

"Testing should generally only be done if the employer has a reasonable suspicion that an employee is under the influence of alcohol or drugs and should be balanced against the employee’s right to privacy."

But what is reasonable suspicion? What intelligence does the employer have to suspect one of their employees is either under the influence of drugs or is carrying drugs whilst on site? Profiling by sight can these days to be considered prejudice, that can potentially leave the employer in hot water.

And Nia Cooper, Partner at Capital Law in Cardiff, explained certain industries are more likely to perform tests: "The risks to health and safety are clearer in some sectors than in others – for example, it is easy to see why a zero tolerance policy is appropriate in the construction and manufacturing sectors, arguably less so in relation to the professional services sector.

"Employers are increasingly justifying random drug testing on the need to ensure that staff can effectively perform their jobs. This is especially the case in care sectors e.g. nurseries, care homes etc."

It shouldn't really matter on the industry should it? attending our place of work under the influence or even carrying drugs on your person whilst at work in any sector cannot be tolerated. Another factor that must be considered is drug dealing, even on a small scale where one employee 'helps out' another could be a huge problem for any work place and create an unwanted negative culture.

Employee needs to give consent

If an employer wants to go ahead and have an employee tested for drugs they will have needed to have asked for consent.

"Regardless of any policy, employees cannot be forced to undergo testing. Their consent must be obtained every time. Employees may have agreed to testing under their employment contracts," said Mr Phillips.

Disciplinary action depends on contracts

Mr Phillips explained what action can be taken if they refuse: "If they are contractually required to do so and refuse, then they will be in breach of their employment contracts and could be subjected to disciplinary action. The usual principles of fairness will still apply when determining any sanction."

Company policy needs to be clear

And employers need to have a clear policy on drug testing describing the process, the length of time the information would be retained and the potential consequences of failing such a test. That policy should address what is acceptable and what is not – is it acceptable that an employee was intoxicated through drug taking three weeks ago as opposed to last night?

Ms Cooper adds: "Legal requirements are therefore: employee consent, clear drug/alcohol policy, reasonable justification for imposing the policy and clarity on the consequences of failing a test".

Its the world we live in today I am afraid, in 2013 evidence of cocaine use was confirmed in the houses of commons, so it isn't just your unskilled or low paid workers who are likely to be drug users. Inquest Canine Detection & Security Ltd, having built up years of experience are being asked more and more to go into places of work - be it factories, office blocks, warehouses, retail stores, transport hubs and even schools, in order to use canines to identify potential drug users and you would be amazed what we find!

A qualified detection dog handler and canine can provide the reasonable intelligence required in order to carry out searches and tests. Be it proactive searches of the property or passive searches of people as they enter the building. The presence of a drug detection dog alone, randomly deployed is often enough to be a suitable deterrent to get the message across of 'no tolerance' in your workplace.

The company has successfully reduced (and eliminated completely) drug use and possession on site a number of locations nationally.

If you feel drug use and possession is a problem in your workplace, why not give us a call for a free demonstration and to find out how we can assist you in your fight against the problem.

Contact Dean Porter on 0800 009 6609 / 07512 105 428 or email us at Dean@icdsevents.co.uk.