Employers have no right to compel their employees to take a drugs test unless there is a clause in the contract that lets them. If there isn't and they force someone to undergo a test, that would constitute a criminal offence. They could also be sued in the civil courts for damages. Richard Arthur, a solicitor from Thompsons' Employment Rights Unit in London, looks at the law relating to drug and alcohol testing and answers some commonly asked questions.

The law

Drug and alcohol testing in the workplace is governed by a mass of domestic and European law. For instance: 

  • The European Convention on Human Rights 
  • The Data Protection Act 1998 and two European directives 
  • The Information Commissioner's draft code of practice on information about workers' health 
  • The Disability Discrimination Act 1995.

What does the Convention say?

Drug and alcohol testing are protected by Article 8 of the European Convention on Human Rights - the right to privacy. Any infringement of that right must be: 

  • in accordance with the law 
  • in pursuance of a relevant legitimate aim, and 
  • necessary in a democratic society

This test of 'proportionality' involves balancing the potential infringement of the individual's rights against the specific objectives of the employer.

What about the Data Protection Act?

Under the Act, the term 'processing' includes 'obtaining, recording, holding, using or disclosing' data. Data which reveals information about criminal conduct or health, as drug and alcohol testing is likely to do, can only be processed in accordance with the principles contained in the Act.

That means they must be fair to the employee, specific as to why the employer is keeping the information, relevant, accurate, not kept longer than necessary, kept secure and processed and transferred in accordance with the Act.

The results of drugs tests may disclose that an employee is taking prescribed drugs and is disabled for the purpose of the Disability Discrimination Act 1995. Subjecting that person to a detriment on the ground of disability would amount to discrimination under that Act.

What about the code of practice?

Part 4 of the Information Commissioner's code of practice (which is still in draft form) deals with information about workers' health. This is crucial to the interpretation of human rights and data protection principles. A full copy of the draft code of practice, which is expected to be finalised soon, is available at www.information commissioner.gov.uk

What should employers do before testing?

Before undertaking drug or alcohol testing, employers should ensure that the benefits justify any adverse impact: 

  • the collection of information through drug and alcohol testing is unlikely to be justified unless it is for health and safety reasons 
  • given the intrusive nature of testing, employers would be well advised to undertake and document an impact assessment.

What about personal information obtained?

The amount of personal information obtained through drug and alcohol testing should be minimised: 

  • employers should use the least intrusive methods possible to deliver the benefit to the business that the testing is intended to bring 
  • any testing should be based on reliable scientific evidence of the effect of particular substances on workers 
  • testing should be limited to those substances and the extent of exposure that will have a significant bearing on the purpose(s) for which the testing is conducted 
  • workers should be told what drugs they are being tested for.

What criteria should employers use?

Employers should ensure that the criteria used for selecting workers for testing are justified, properly documented, adhered to and are communicated to the workers.

The code says that it is unfair and deceptive to lead workers to believe that testing is being carried out randomly if, in fact, other criteria are being used. If random testing is to be used, employers should ensure that it is carried out in a genuinely random way.

If other criteria are used to trigger testing, for example the suspicion that a worker's performance is impaired as a result of drug or alcohol use, the employer should ensure the worker is aware of the true criteria that are being used.

Who should be tested?

Testing should be confined to those workers whose activities actually have a significant impact on the health and safety of others. Even in safety-critical businesses such as public transport or heavy industry, workers in different jobs will pose different safety risks.

Testing all workers in a business will not be justified if in fact it is only workers engaged in particular activities who pose a risk.

What should testing be used for?

Testing should only be used to detect impairment at work rather than illegal use of substances in a worker's private life. Testing to detect illegal use may be justified, but only if the use of the drug would breach the worker's conditions of employment and cause substantial damage to the employer's business.

Should workers know they are being tested?

Employers should ensure that workers are fully aware that drug or alcohol testing is taking place, and of the possible consequences of being tested:

  • drug and alcohol policies should be set out in a staff handbook 
  • the consequences for workers for breaching the policy should be explained 
  • employers should ensure that workers are aware of the blood alcohol level at which they may be disciplined when being tested for alcohol 
  • employers should not conduct testing on samples collected without the worker's knowledge 
    Employers should also ensure that drug and alcohol testing is: 
  • of sufficient technical quality to support any decisions or opinions that arrive from it 
  • subject to rigorous integrity and quality control procedures 
  • conducted under the direction of, and positive test result interpreted by, a person who is suitably qualified and competent in the field of drug and alcohol testing.

How are cases likely to develop?

Up until now, tribunals were likely to have approached a dismissal for drug or alcohol use as potential gross misconduct, applying the test of 'band of reasonable responses'. That test gives considerable latitude to employers to justify dismissals on subjective grounds, but things may be changing.

The employment appeal tribunal has now acknowledged that the reasonableness of a dismissal is subject to compliance with a worker's rights under the European Convention on Human Rights - for example, X v Y (2003, IRLR 561) and Pay v Lancashire Probation Service (2004, IRLR 129).

In negotiation of drug and alcohol testing policies, employers should be referred to the standards set out by the Information Commissioner. Those standards can also be referred to in court and tribunal proceedings.

Who should be tested?

Testing should be confined to those workers whose activities actually have a significant impact on the health and safety of others. Even in safety-critical businesses such as public transport or heavy industry, workers in different jobs will pose different safety risks.

Testing all workers in a business will not be justified if in fact it is only workers engaged in particular activities who pose a risk.

What should testing be used for?

Testing should only be used to detect impairment at work rather than illegal use of substances in a worker's private life. Testing to detect illegal use may be justified, but only if the use of the drug would breach the worker's conditions of employment and cause substantial damage to the employer's business.

Should workers know they are being tested?

Employers should ensure that workers are fully aware that drug or alcohol testing is taking place, and of the possible consequences of being tested:

  • drug and alcohol policies should be set out in a staff handbook 
  • the consequences for workers for breaching the policy should be explained 
  • employers should ensure that workers are aware of the blood alcohol level at which they may be disciplined when being tested for alcohol 
  • employers should not conduct testing on samples collected without the worker's knowledge 
    Employers should also ensure that drug and alcohol testing is: 
  • of sufficient technical quality to support any decisions or opinions that arrive from it 
  • subject to rigorous integrity and quality control procedures 
  • conducted under the direction of, and positive test result interpreted by, a person who is suitably qualified and competent in the field of drug and alcohol testing.

How are cases likely to develop?

Up until now, tribunals were likely to have approached a dismissal for drug or alcohol use as potential gross misconduct, applying the test of 'band of reasonable responses'. That test gives considerable latitude to employers to justify dismissals on subjective grounds, but things may be changing.

The employment appeal tribunal has now acknowledged that the reasonableness of a dismissal is subject to compliance with a worker's rights under the European Convention on Human Rights - for example, X v Y (2003, IRLR 561) and Pay v Lancashire Probation Service (2004, IRLR 129).

In negotiation of drug and alcohol testing policies, employers should be referred to the standards set out by the Information Commissioner. Those standards can also be referred to in court and tribunal proceedings.

Who should be tested?

Testing should be confined to those workers whose activities actually have a significant impact on the health and safety of others. Even in safety-critical businesses such as public transport or heavy industry, workers in different jobs will pose different safety risks.

Testing all workers in a business will not be justified if in fact it is only workers engaged in particular activities who pose a risk.

What should testing be used for?

Testing should only be used to detect impairment at work rather than illegal use of substances in a worker's private life. Testing to detect illegal use may be justified, but only if the use of the drug would breach the worker's conditions of employment and cause substantial damage to the employer's business.

Should workers know they are being tested?

Employers should ensure that workers are fully aware that drug or alcohol testing is taking place, and of the possible consequences of being tested: 

  • drug and alcohol policies should be set out in a staff handbook 
  • the consequences for workers for breaching the policy should be explained 
  • employers should ensure that workers are aware of the blood alcohol level at which they may be disciplined when being tested for alcohol 
  • employers should not conduct testing on samples collected without the worker's knowledge 
    Employers should also ensure that drug and alcohol testing is: 
  • of sufficient technical quality to support any decisions or opinions that arrive from it 
  • subject to rigorous integrity and quality control procedures 
  • conducted under the direction of, and positive test result interpreted by, a person who is suitably qualified and competent in the field of drug and alcohol testing.

How are cases likely to develop?

Up until now, tribunals were likely to have approached a dismissal for drug or alcohol use as potential gross misconduct, applying the test of 'band of reasonable responses'. That test gives considerable latitude to employers to justify dismissals on subjective grounds, but things may be changing.

The employment appeal tribunal has now acknowledged that the reasonableness of a dismissal is subject to compliance with a worker's rights under the European Convention on Human Rights - for example, X v Y (2003, IRLR 561) and Pay v Lancashire Probation Service (2004, IRLR 129).

In negotiation of drug and alcohol testing policies, employers should be referred to the standards set out by the Information Commissioner. Those standards can also be referred to in court and tribunal proceedings.