At the beginning of October, it was announced that workplace drug testing is on the rise in the UK – with rises of between 40% and 470% in the last four years for four companies. This has become big business for the drug screening companies and is deemed necessary by some employers, but can they really test you randomly for drugs whilst at work?
Of course, there are some industries were random and regular drug testing is mandatory and rightly so; for example train drivers or pilots. But it is also becoming more commonplace in non safety-critical roles. For example, Southend Airport screens all employees, not just those in charge of driving trucks. Employers might want to test to safeguard their business and its reputation. They also have a duty to provide a safe working environment for all staff under the Health and Safety at Work Act 1974 as well as conduct formal risk assessments and take the necessary preventative steps to avoid harm under the Management of Health and Safety at Work Regulations 1992.
Whether a company can test you for drugs and/or alcohol when they are not required to by law is a difficult question. Ultimately, they cannot carry out any such test without your consent i.e. through you signing an employment contract. The question is what then happens if you refuse to provide a sample and you are dismissed, or you provide a sample, it tests positive because you had smoked cannabis at the weekend and you were dismissed – would you have a claim for unfair dismissal?
If you make a claim for unfair dismissal, the tribunal will look at two key things:
- whether the reason for the dismissal was fair; and
- if so, whether the employer acted reasonably in treating that reason as a sufficient reason for dismissal.
On the ordinary test for unfair dismissal, it is likely that the reason would be considered fair – it is a breach of your employment contract and potentially misconduct. The tribunal will then consider whether the action taken by the employer in dismissing you was within the range of reasonable responses open him. This includes whether the punishment of dismissal was fair as well as whether the way in which you were dismissed was fair.
However, where article 8 of the Human Rights Act 1998 comes into play, which protects an individual’s right to privacy, the test is a little different. All public authorities are bound to give effect to this act and all legislation must be interpreted in light of this act. Therefore, whether you work for the public sector or a private company, the tribunal will still have to look at whether your privacy has been invaded.
When the possible reason for dismissal arises because of circumstances involving your individual right to respect for private life, your employer should consider the interference with your private life and whether there is justification for it. Failing that, this is what the tribunal will consider if you were to bring proceedings for unfair dismissal. Interference with your article 8 right can be justified provided the interference is proportionate to the legitimate aim pursued. Such aims include:
- the interests of national security;
- the interests of public safety or the economic well-being of the country;
- the prevention of disorder or crime;
- the protection of health or morals;
- the protection of the rights and freedoms of others.
Essentially this is a balancing exercise between your right to private life and the aim pursued by your employer in wanting you to do a drugs test. Where the balance will be struck is a difficult question – but it is clear that this test favours you as the employee far greater than the employer, whose interests are more protected by the traditional test for unfair dismissal (whether the employer has a fair reason to dismiss and whether the decision to dismiss was within the range of reasonable responses an employer could give in the circumstances).
The European Court of Human Rights considered this balancing exercise in 2004. It found that workplace drugs testing of an office cleaner in a nuclear power plant did not violate article 8 of the European Convention on Human Rights, which protects an individual’s right to private life. The court balanced the cleaner’s right to a private life against the nuclear power plant’s operational motives for drug testing. It was deemed that the need to protect public safety and the protection of rights and freedoms of others outweighed the invasion of the cleaner’s privacy. Arguably, however, working in a nuclear power plant obviously throws up safety concerns, even if you just clean the office. In a truly non safety-critical environment, it is suggested that a drug test could be an invasion of your privacy, but this is yet to be tested properly in the courts.
Guidance has also been offered by the Information Commissioner’s Employment Practices Code. It seems to advocate that employers should consider article 8 when deciding whether to carry drugs tests. It states:
- “before obtaining information through drug or alcohol testing [employers should] ensure that the benefits justify any adverse impact, unless the testing is required by law” (para 4.4.1); and
- employers should “gather information through testing designed to ensure safety at work rather than to reveal the illegal use of substances in a worker’s private life” (para 4.4.5).
Ultimately, it would seem that an employer would need very good reasons for administering drug tests in a non safety-critical environment without leaving themselves open to an article 8 claim. But with the rises in the practice seen in recent years, it might not be too long before the Employment Appeal Tribunal provides a definitive answer to this question