Drugs in the workplace – do you know what line to take?

With several national newspapers running the story of a city worker seemingly snorting cocaine on the Northern Line, it raises the issue of how employers can deal with drug use in the workplace. The suited man is employed by a data room provider whose business is storing confidential information on clients’ behalf. Now the press campaign has identified the employee and his employer, this has reputational consequences for his employer and the man himself. Social media means personal transgressions are quickly made public and the consequences of ill-advised actions can be long-term. The employer in this instance has stated that they are investigating the matter and will take action under their disciplinary policy. It is unfortunate that the public nature of this incident has compelled the employer to take this action. But what can employers do to identify and manage drug use in the workplace? Can a supportive culture encouraging employees to seek help be beneficial to both employer and employee?

So what can employers do to identify and manage drug use in the workplace?

There is no doubt that most large employers will have a number of employees taking drugs on their staff at any given time (both within and outside working hours). Drug use in the UK is among the highest in Europe and the problem has increased considerably over the last decade. Most employers will list being under the influence of drugs or alcohol at work as an example of gross misconduct in their disciplinary policy and/or contract of employment, but should you have a specific policy and will you introduce drug testing in the workplace?

Drug testing

Drug-testing both during recruitment and throughout employment is more commonplace in the US. However, increasingly UK employers are considering taking such measures, particularly where health and safety is paramount and for higher risk sectors such as transport and public health. An employer shouldn’t introduce a drug and alcohol testing policy without good reason. There are trust and confidence, data protection and human rights considerations that must be grappled with. For example:

• Unreasonably requesting that an employee takes a test could breach trust and confidence between the employee and employer which could lead to a constructive unfair dismissal claim;
• Drug and alcohol test results are sensitive personal data, and there is specific guidance set out by the data protection employment practices code on when testing may be permitted. In a nutshell, the benefits of the testing must justify the adverse impact of the intrusive nature of testing. Employers should carry out an impact assessment to identify why testing is being introduced and the most appropriate method for it. Test results should be treated in the strictest confidence and as few people as possible should have access to the results;
• Drugs test are, by their nature intrusive. An employee could argue that requiring them to take a test is a breach of their right to private and family life under article 8 of the European Convention on Human Rights.

If drug-testing is introduced, the policy must set out how this will be carried out and when. Employers will need to decide whether testing will be carried out where drug-use is suspected and/or on a random basis. Testing “with cause”, requires the employer to have a reasonable suspicion of drug-use, perhaps due to a pattern of behaviour, absences from work or behaviour towards colleagues or clients. Random testing is generally more appropriate where there are pressing health and safety concerns (for example, public transport, public health and oil and gas workers). Testing must be genuinely random to avoid any suggestion that employees are being chosen on the basis of protected characteristics such as age or race. Testing is best carried out by a third party provider or occupational health.

Given this, drug-testing is only likely to be appealing to employers where a problem is identified in the workplace and where health and safety concerns are paramount. If there is no discernible impact on work performance, then perhaps ignorance is bliss in terms of what your employees do in their personal time?

Drug & alcohol policy

It is advisable that all employers have a clear position on employees who are under the influence of drugs or alcohol at work. For most, being intoxicated at work is a disciplinary offence and, in some circumstances, will be gross misconduct justifying dismissal without notice or payment in lieu of notice. All employees should be aware of their employer’s policy on drugs and alcohol and the consequences of breaching its terms. The policy should specifically cover employees’ conduct at work or work-related social events. Employers should require employees to confirm they have read and understood the policy on commencement of employment and a record kept of this confirmation. Fear of dismissal can be a powerful deterrent for employees who may find themselves having to explain to potential new employers the reason for their dismissal and lack of a reference.

Positive results

Where drug-use is detected, whether or not disciplinary action is taken will depend on the circumstances of the case and the employer’s particular stance. Where drug use doesn’t clearly impact on work performance, summary dismissal may not be a reasonable response. Certain drugs are detectable through drug tests even if there is no longer any effect on the individual’s behaviour. The circumstances of the positive result should be thoroughly explored using a fair procedure and consideration given to whether the employer can support an employee with access to an assistance programme or other professional help.

Drug dependency is specifically excluded from the definition of disability under the Equality Act but care must still be taken with employees suspected of drug use as health conditions arising out of it or leading to it can be protected disabilities, for example, depression. Where a protected disability is present, employers must make reasonable adjustments and dismissal may well be considered unfair by a Tribunal.

What if this was your employee?

Care must be taken not to stray into policing people’s private lives and predilections – the question should always be, what is the identifiable impact on work performance? However, recent press coverage highlights the reputational damage employee drug use can lead to. In order to rely on bringing the company into disrepute as a reason for dismissal you have to be sure that the behaviour has actually, or reasonably could have, brought the company into disrepute. For example, you should investigate whether anyone would be able to associate the company with the employee’s conduct. This often comes up in the context of social media. If an employee were to post on social media about drug use you should consider whether the use of social media is purely private or whether the company is referenced in their profile and if the employee is connected to clients or colleagues. If clients were able to see the employee’s conduct and associate it with the company, then this could well be considered to bring the company into disrepute.

All employers should have a well-publicised policy on drug use and make clear that bringing the company into disrepute can be a sackable offence. However, thought should also be given to what assistance can be offered to employees who have a drug or alcohol problem. A supportive work environment will make it more likely that employees will ask for help and give the employer the opportunity to address the problem before it is too late.