Employers often justify workplace drug testing on health and safety grounds, particularly in safety-critical jobs like driving or medicine. They may also cite concerns over employee absenteeism or job performance.
The practice has increased dramatically in the UK over recent years. Indeed, many businesses seem to have latched on to workplace drug testing as a way to dismiss employees without paying them redundancy.
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If your employer wants to carry out workplace drug testing, the first thing you should do is take a look at your employee handbook or contact of employment. This should outline how and when your employer can conduct tests — and what happens if you fail one.
If your employee handbook or contract does not discuss workplace drug testing then your employer may not be able to ask you to undertake such a test. You should raise any concerns you have regarding the legality of the test with your supervisor and/or follow your employer’s grievance procedure.
There is no legal requirement that an employer provide advance notice of testing, however, which can be problematic if you have recently taken a drug like cannabis, which remains detectable in your urine for several weeks after use.
Your employer must obtain your informed consent before they perform a drug test. This means they have to explain the purpose of the test and wait for you to agree to be tested before taking a sample.
Your employer certainly cannot force you to take a drug test or covertly test you. And if you fail the drug test, your employer cannot rely on the illegally obtained sample to dismiss or discipline you.
If your employer tests you without informed consent, you should speak with a solicitor since this is unlawful.
If your employer has reasonable grounds to test employees (e.g., because of the nature of the work) and says it will select people randomly, selection must be genuinely random. If you employer singles you out for a test without valid justification, you may be able to claim unfair discrimination.
The results of your drug test must remain confidential, even if you fail a test. Moreover, because of the sensitive nature of testing, it should be conducted by a person of the same sex.
Refusing to take a drug test
If you unreasonably refuse to take a drug test, you should expect to face disciplinary action and, quite likely, dismissal. Therefore, before you refuse to take a test, consult a solicitor for advice.
If you work in transportation or operate dangerous machinery, however, your employer may select you randomly and give you little time to accept or refuse the test. In these circumstances, you may not be able to consult a solicitor — even asking for a postponement may be considered unreasonable.
Failing a drug test
Provided your employer has a right to test you, you may face summary dismissal for gross misconduct if you fail a drug test.
Being summarily dismissed for gross misconduct is significant because it may excuse your employer from providing notice and paying you redundancy.
First things first, however, check your employment contract to see what it says your employer can do, and consult a solicitor for advice.
Disability Discrimination Act
Drug addiction does not qualify as a disability for the purposes of the Disability Discrimination Act (DDA) unless caused by the administration of medically prescribed drugs or other medical treatment.
Drug use related to an underlying medical condition, however, may fall within the remit of the DDA. For example, an employee may have taken drugs during a bout of clinical depression. In these circumstances, dismissal for a failed drug test could be unreasonable.
Factors taken into account in assessing reasonableness of drug test dismissal
1. What effect did the employee’s drug use have on workplace health and safety?
2. Does the employee have contact with children/young people?
3. Was employee taking drugs or affected by drugs on or off duty?
4. Has the employer’s confidence in the employee been irredeemably undermined?
5. What effect does employee’s drug use have on the employer’s business and reputation?
6. What kind of drugs did the employee use?
7. Are there any mitigating factors (e.g., clinical depression)?
Appealing a dismissal over a failed drug test
You can challenge a drug test dismissal through your employer’s internal grievance procedure. If your employer rejects your appeal, you could then take your case to an employment tribunal. In either event, you are strongly advised to seek the immediate help and advice of an experienced solicitor who specialises in employment law.
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