Health and safety and drugs
All employers have a duty under health and safety law to take reasonable steps to ensure the health and safety of their employees and others in the workplace. This means that risks related to drugs and alcohol should be taken into account when the employer acts to meet their health and safety obligations. For example:
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risks posed by drugs and alcohol should be taken into account in workplace risk assessments. Risk assessments should be tailored to the unique workplace (eg if staff members drive or operate machinery, their being under the influence of drugs or alcohol may pose a greater risk) and should take into account individual staff members
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the employer should consult their workforce when introducing or changing drug policies (eg drug testing rules), if this could substantially affect the workplace’s health and safety
Management of risks in this context could involve, for example, temporarily altering the role of a staff member who discloses a drug or alcohol dependency so that they’re not using machinery, to prevent them potentially injuring themselves or others by using this machinery incorrectly.
Various laws impose additional, specific requirements on employers in relation to health and safety and drugs. For example:
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the Misuse of Drugs Act 1971 prohibits employers from knowingly allowing the supply of illegal substances within their premises
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the Road Traffic Act 1988, Transport and Works Act 1992, and various other legislation make it a criminal offence for various modes of transport (eg trucks and trains) to be operated under the influence of drugs or alcohol. For more information, read Road traffic offences and the government’s guidance on drugs and driving
Employers should keep the considerations above in mind when carrying out their health and safety duties. For example, when making Health and safety policies or carrying out Workplace risk assessments.
How can an employer carry out drug testing?
Drug testing should always be carried out transparently, fairly, and in accordance with the law. Setting out their processes and rules in a Drug testing policy can help an employer to achieve this.
Key things for an employer to do and consider when introducing workplace drug testing include:
Obtaining consent
In order to perform a drug test on a staff member, an employer must obtain the staff member’s advance written consent. A common way of obtaining such consent is by incorporating a grant of consent into a staff member’s Employment contract or other contract of employment, which the staff member then signs.
Staff members are under no legal obligation to agree to changes in their terms of employment (eg to agree to drug testing). They can refuse to take a test if they wish. If an employer tries to force a test on a staff member, that staff member can resign and may be able to claim constructive dismissal (ie that they had no option but to resign).
Setting clear aims and procedures
When deciding on a drug testing programme, an employer should establish and explain:
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what the testing programme is trying to achieve. Testing should only be carried out when doing so is justified and necessary (eg for health and safety reasons)
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how tests will be carried out (eg a reputable testing provider should always be used)
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what support is available to those who misuse or have health issues related to drugs or alcohol
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what disciplinary action may be taken by the employer if a staff member’s test returns positive
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how they will protect staff members’ personal data that they collect during the programme (see ‘Data protection and drug testing’ below for more information)
Implementing a comprehensive support programme
It’s important that an employer only carries out drug and alcohol testing as part of a more comprehensive health and safety and staff care programme. Support should always be offered to any staff member who is identified as having health issues, whether physical or mental (eg addiction disorders or use of drugs or alcohol to self-medicate other mental health conditions, like depression or anxiety). Support could be via, for example, referrals to healthcare professionals, workplace wellbeing initiatives, or support accessing rehabilitation services.
Only taking disciplinary action where appropriate
Disciplinary action may be taken against staff members who unreasonably refuse to consent to tests or who fail tests. However, this should always be carried out in accordance with the employer’s Disciplinary procedure and any other relevant policies. Action should only be carried out for legitimate reasons, for example, because a staff member’s drug use is causing them to perform their job poorly in a way that endangers others.
Being wary of random testing
Employers can randomly test employees in an attempt to deter staff members from using illegal substances inappropriately. It is debatable whether this testing method is effective. Moreover, it is important that any random tests are genuinely random, as it may constitute discrimination to target an individual or group of staff members for testing. Employers should not single out individual employees for drug testing unless this is justified by, for example, the nature of their job (eg operating dangerous machinery) and because they have reason to believe that there has been a decline in a staff member’s performance or behaviour due to their use of drugs.
Data protection and drug testing
As for the use of any other personal data (ie information about an individual from which they may be identified), the use of a staff member’s personal data (eg names and medical information, like drug test results) must be carried out in compliance with data protection law (eg the UK General Data Protection Regulation (GDPR) and the Data Protection Act 2018). This means that all processing (eg use) of this information must be justified and secure. As data about health (eg drug test results) is considered ‘special category personal data’, this information must be given additional protection. The data protection principles should always be followed.
To help ensure data protection compliance, before implementing drug testing, an employer should:
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make sure they have a lawful basis for their activities (eg having obtained their staff members’ consent and/or facilitating compliance with a legal obligation, such as a health and safety duties)
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make sure they meet a specific condition for processing special category data (eg having obtained explicit consent or processing for certain public health reasons)
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generally carry out a Data protection impact assessment (DPIA) to consider the high risks posed by use of personal data during drug testing
For more information, read Data protection, Processing personal data, Compliance for DPIAs, and the Information Commissioner’s Office (ICO) guidance on using medical examinations and drugs and alcohol testing.
A staff member’s human right to respect for their private and family life should also be taken into consideration when an employer evaluates the privacy aspects of drug testing. Any interference with this right must be for a legitimate reason. For more information, read Human rights law.
Discrimination and drugs in the workplace
When testing for drugs or otherwise dealing with issues related to drugs and alcohol affecting the workplace, an employer should be careful not to discriminate against any staff member.
The Equality Act 2010 prohibits the less favourable treatment of an individual based on their status related to one of the defined ‘protected characteristics’.
Disability is one of the protected characteristics. The Equality Act 2010 specifically excludes alcohol or drug addictions from being considered disabilities except in certain circumstances (eg if the addiction originated from adherence to a legitimate prescription of a medication). However, an individual may be considered to have a disability if, for example, they have another mental health difficulty related to an addiction disorder (eg a depression or anxiety disorder), which impacts their day-to-day activities.
If a staff member does have such a disability, their employer must take care not to unlawfully discriminate against them (eg by outright dismissing them due to their dependance or refusing to promote them). The employer should also consider making any necessary reasonable adjustments to the staff member’s places or systems of work to enable them to carry out their work (eg removing alcohol from an office, allowing flexible working arrangements, or providing an additional safe space and extra time for a staff member to take time out).
For more information, read Equal opportunities and discrimination and Disability and reasonable adjustments.
