Can my Company have a drink and drugs testing policy

Any employer has a duty under Health and Safety Laws to ensure the health, safety and welfare of employees at work. If an employer allows an employee to work whilst under the influence of drink and/or drugs then they can face prosecution. Clearly, road traffic laws also prevent workers from being able to drive whilst under the influence of drink or drugs.

What can I do as an employer
The first thing any employer can do is to introduce a policy on drugs into their employment documentation. We would recommend that this is in the staff handbook and also in the contract of employment. The contract should set out that an employee is expected to comply with any reasonable request to undergo a test. A failure to comply can lead to a breach of contract, disciplinary proceedings and possibly dismissal.

What is this is not in our contract
The answer is simple. Get a policy drafted, amend the contracts and sit down with your staff and explain why you are taking the action that you are taking.

Where do we go next
Once the policy is introduced, staff need to be trained as to what to look out for as signs that someone may be under the influence of drugs. Clearly, being under the influence of alcohol is far easier to detect. Once suspicion is raised the employee needs to be challenged. Systems then have to be in place for a test to be provided and analysed. This is far from easy and expert help should be sought.

Can the employee be forced to undergo any test
An employee cannot be forced to undergo any test. They cannot be held down and a sample of their hair or blood etc taken. This would amount to an illegal assault upon the employee.

What can we do if the employee refuses
If the employee refuses as part of the investigation then they should be told that the investigation will  proceed and could lead to disciplinary action. Make them aware of the implications of refusal. The employer will have to form a view upon whether the employee was under the influence of anything and how this impacted upon their role.

There is a second issue that the employee could also be disciplined on the basis of a failure to follow a reasonable instruction during the course of their employment.

If any employee refuses to allow a test to take place can we dismiss
Potentially an employer can dismiss on the basis of a failure to follow reasonable instructions. Each case would however depend upon its own individual circumstances.

If an employee is under the influence of drink or drugs can we dismiss
Again the answer is potentially yes. This can be on the basis of gross misconduct if they are operating machinery or potentially a loss of trust and confidence in the employee. There is a lot of case law in this area. Each case will very much depend upon its own facts.

Summary

• Have a policy and discuss with staff
• Ensure that staff know what signs to look for
• Proceed with an investigation and disciplinary action
• Be aware that staff cannot be forced to take part 
• Be consistent in your approach

This blog represent our views on the issues discussed. It is not intended to be specific legal advice upon any particular set of facts. If in doubt please seek legal advice on any employment law issue. We can be contacted on 01582 439795 and will be happy to assist you with your staffing issues.

Our website is at www.chilternsolicitors.co.uk, which has a news page where you can be updated on employment and HR issues. You can also follow us on twitter @chilternsols.