Workplace Drug Testing: The Law
As an employer you have a duty under UK legislation (Health and Safety at Work Act (1974)) to ensure, as far as is reasonably practicable, the health, safety and welfare at work of your all employees.
There is also a duty of care under the Management of Health and Safety at Work Regulations (1999). This requires the assessment of the risks to the health and safety of your employees; if you knowingly allow an employee under the influence of drugs (including alcohol) to continue to work and their behaviour places the employee, or indeed others at risk, you could be liable. There is also a requirement for employees to take reasonable care that their actions will not affect or endanger others or themselves.
There are implications that take the duty of care beyond your physical places of work. Under the Road Traffic Act (1988) any person who, when driving or attempting to drive a motor vehicle on a road or other public place, is unfit to drive through drink or drugs will be guilty of an offence. It doesn’t matter if this occurs on your site, it only matters that they are on your time. Legislation, through the Crimes and Courts Act (2013), has created a specific drug driving offence for driving whilst under the influence of drugs, either illicit or prescription. This is leading to the introduction of roadside drug testing by the police.
The principal UK legislation for controlling the misuse of drugs is the Misuse of Drugs Act (1971). This covers nearly all drugs with misuse and/or dependence liability. The Act makes the production, supply and possession of these controlled drugs unlawful except in certain specified circumstances (for example, when they have been prescribed by a doctor). If you knowingly permit the production or supply of any controlled drugs, or the use of certain substances to take place on your premises, again the company can, in certain circumstances, be committing an offence and be held liable for the consequences.
It is possible that in certain circumstances charges may be brought against an employer or an employee under either this Act or the Health and Safety at Work Act or both. It would be up to the courts to decide on the circumstances of each case.
Perhaps the biggest potential risk for employers comes from the Corporate Manslaughter and Corporate Homicide Act (2007). This is landmark, watershed legislation. Under this legislation companies and organisations can be found guilty of corporate manslaughter in cases of serious management failures which result in a gross breach of a duty of corporate care. The Act clarified the criminal liabilities of large organisations (including companies) where serious failures in the management of health and safety result in a fatality.
Whilst these prosecutions are of the corporate body and not individuals directly, the liability of directors, board members or other individuals under health and safety law or general criminal law, is unaffected. As such, individuals can be prosecuted for separate health and safety offences.
The clear implication for companies and organisations is that health and safety management systems should be under continual review. In particular, it is imperative that these activities are managed and organised by senior management. The breadth and depth of UK legislation makes the inclusion of drug an alcohol use a key part health and safety management systems. The only way to ensure that you know that your employees are clear from these substances, whilst at work, is to introduce an effective Drug and Alcohol Policy and screening process.