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25 Jul 2016


HR Consultancy

Employers must be vigilant to avoid employees working under the influence

Daniel Wilde, Head of Employment Law from Harding Evans solicitors, and solicitor Kate Lingley from the firm’s crime department, consider how clear policies can guard against substance misuse

An individual can commit criminal offences at work without realising they have actually done anything wrong.  One of the most common ways of doing so is through driving while intoxicated through drink or drugs, which has implications for health and safety at work, as well as for the individual.

Drink driving laws have been in force for a considerable period of time and are familiar to most drivers. However, too often clients do not realise that they are intoxicated within the meaning of the law. This can happen if a considerable amount of alcohol is consumed the night before and remains in the body, or, if in the case of drug driving, substances like cannabis are consumed which remain in the system for quite some time.

Increasingly, police are using new powers to stop drivers and test for both legal and illegal drugs. A considerable amount of people stopped so far have tested positive, the BBC reported in February 2016 that arrests were up 800% from the previous year.

The new rules are complicated; covering both prescription and non-prescription medication. Drivers who are prescribed controlled medication are advised to carry proof of their prescription with them, and to make sure prescriptions are taken in accordance with instructions. Taking too many tablets at the wrong time, for example, could result in the inadvertent committal of a criminal offence, even where driving is not impaired.

Sentences for these offences carry a mandatory driving ban, which can in many circumstances result in financial implications for the employer and the employee, often leading to substantial financial loss and staffing implications.

Health and safety law

In terms of criminal liability for organisations, the most common way for this to occur is via breach of health and safety legislation itself. For an employer to avoid prosecution, risks must be managed by the company and its employees effectively, and risk management procedures must be in place and adhered to. Employers must not turn a blind eye to employees working while under the influence. If an accident were to happen, then the employer could face liability if the risk management system is either non-existent or not properly followed.

The individual could also face criminal prosecution if they worked while unfit through drink or drugs and created a breach of the legislation. If the individual put employees at risk through their actions, then they too could also face criminal prosecution.

Employer’s obligations

Notwithstanding the above, there is no positive obligation upon employers to test their employees for drugs and alcohol, even where employees operate machinery and/or drive as part of their duties.

Many employers apply a substance misuse policy and reserve the right to test for drugs and alcohol, but there is no implied right to test employees for drugs and alcohol and testing cannot take place without the employee’s explicit consent. Any employer wishing to reserve the right to test employees for drugs and/or alcohol should stipulate within employees’ contracts of employment that they must agree to undertake drug and alcohol testing where required. Even then, an employee cannot be forced to undergo a test – albeit most employers’ policies would stipulate that a refusal to undertake a test would constitute gross misconduct.

In circumstances in which an employer suspects that an employee may be under the influence of alcohol and drugs, there may be specific situations where it is justifiable to request an employee to undergo testing, despite a contractual right to test not being in place.

The Employment Practices Code, issued by the Office of the Information Commissioner, sets out good practice recommendations as to when testing will or will not be acceptable.  Whether it will reasonable or proportionate for an employer to test its employees for drugs and alcohol will depend on a number of factors, including:

  • Is there a health and safety justification for the testing?
  • Have there been specific incidents which have made the employer suspect alcohol abuse?

Employers are recommended to have in place a substance misuse policy and have very clear guidelines to staff about its policy on substance misuse and also to have in place policies and procedures in relation to drugs and alcohol testing.

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