Shoosmiths LLP
  January 6, 2025 - Milton Keynes, England

Driving employees to safety - Should you consider Drug & Alcohol Testing?
  by Shoosmiths LLP

In today's workplace, ensuring the safety and well-being of employees is paramount. One critical aspect of this is the implementation of clear, appropriate and fair drug and alcohol testing. We explain when and why employers should conduct testing.

When Can Employers Conduct Drug and Alcohol Testing?

According to the “Being monitored at work: workers' rights: Drug testing - GOV.UK” guidelines, employers must have consent from employees to conduct drug and alcohol tests. This consent is typically obtained through a contractual health and safety policy or statement included in an employee's contract of employment. Employers should limit testing to employees whose roles justify it and ensure that the tests are conducted randomly to avoid discrimination.

Employers cannot force employees to take a drug test. However, if an employee refuses to take a test when there are valid grounds for testing, adverse inferences can be made, and the employee may face disciplinary action on grounds of failing to follow a reasonable management instruction. It is crucial for employers to have a clear and fair policy in place to handle such situations and ensure employees are aware of the consequences of failing to undergo a drugs test when reasonably requested to do so.

The results of any testing will be classified as sensitive personal data, and so the employer should set out in any privacy notice and data protection policy how the testing will be carried out, the reasons for it, who the data will be shared with, what it will be used for and for how long it will be kept. It is important that employers undertake a Data Protection Impact Assessment before introducing testing in the workplace. 

Why Should Employers Conduct Drug and Alcohol Testing?

The primary reason for conducting drug and alcohol tests is to ensure the health and safety of all staff, as well as, customers/clients, suppliers, other third parties, and the public at large. Driving is one of the most dangerous work activities, contributing to numerous work-related accidents and fatalities. Road safety statistics data for 2023 indicated a fatality rate of 396 individuals who were travelling as a part of their work.  By implementing drug and alcohol testing, employers can identify and mitigate risks associated with impaired employees, thereby protecting both employees and the public.

Employers have a legal duty to manage health and safety risks in the workplace. Health and safety laws apply to on-the-road work activities, and employers must manage these risks within a clear and comprehensive health and safety framework. Drug and alcohol testing is a crucial component of this framework, helping employers comply with legal requirements and avoid potential liabilities. These could include reputational damage if employees are caught drink-driving as a part of their work, legal action for vicarious liability towards any injured parties, and liability towards the employee for failing to implement adequate safeguards in their working environment.

Impaired employees can also negatively impact productivity and efficiency. Substance abuse can lead to increased absenteeism, reduced performance, and a higher rate of road traffic accidents during an individual’s course of employment. By identifying and addressing substance abuse issues, employers can maintain a more productive, efficient and safe workforce.

Employers who prioritise health and safety through drug and alcohol testing can enhance their reputation and public image. This proactive approach demonstrates a commitment to employee well-being and can attract top talent who value a safe and supportive work environment.

What Can Employers Do?

The CIPD provides valuable insights and recommendations to help organisations develop effective policies and support systems:

 



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