2. The legal framework

There are a number of pieces of legislation dealing with drugs and alcohol at work which union reps need to be familiar with. These include health and safety law, employment law, human rights, disability, data protection as well as criminal law.

Health and safety law

The Health and Safety at Work Act 1974

The Health and Safety at Work etc Act 1974 deals with the general duties of employers and employees under Section 2. All employers have a general duty to ensure the health, safety and welfare of their employees. If an employer knowingly allowed an employee under the influence of alcohol or drugs to continue working and this placed the employee or others at risk, the employer could be liable to charges.

Section 7 of the Act requires employees to take reasonable care of the health and safety of themselves and others who may be affected by their acts or omissions at work. This means that employees could be liable to charge if their alcohol consumption or drug-taking put safety at risk.

The Management of Health and Safety at Work Regulations 1999

The Management of Health and Safety at Work Regulations 1999 requires employers to conduct risk assessments relating to drugs and alcohol at work, if there appears to be a risk to workers. The issues must then be treated in the same way as any other workplace hazard and dealt with through the implementation of prevention and control measures.

Safety Representatives and Safety Committees Regulations 1977

The Safety Representatives and Safety Committees Regulations 1977 give recognised trade unions the legal right to appoint workplace safety representatives.

The regulations set out the rights and functions of safety representatives, employers’ obligations with regard to consultation and the provision of facilities, assistance and information. Safety representatives can therefore include drugs and alcohol as a part of their work.

More information: HSE, Alcohol and drugs at work materials, www.hse.gov.uk/alcoholdrugs/index.htm

Employment law

Drug and alcohol testing in the workplace is governed by a range of domestic and European law. This includes the European Convention on Human Rights, the Data Protection Act 1998 and the Disability Discrimination Act 1995.

The right to privacy in relation to drug and alcohol testing is protected by Article 8 of the European Convention on Human Rights, which was implemented in the UK as part of the Human Rights Act 1998. 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.

The law therefore balances the potential infringement of the individual’s rights against the specific objectives of the employer.

The Disability Discrimination Act 1995 defines a disabled person as someone who has “a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities”. Alcoholism and drug dependency appear to come under that definition. However, the Disability Discrimination (Meaning of Disability) Regulations 1996 specifically exclude addiction and/or dependency on alcohol or drugs from the scope of the Act, unless the addiction was originally the result of the administration of medically prescribed drugs or other medical treatment.

Information about workers’ health, which includes drug and alcohol testing, is covered by the Data Protection Act 1998. Employers should follow the Employment Practices Data Protection Code — Information about Workers’ Health, which is provided by the Information Commissioner (see Chapter 3). Although a failure to follow the Code is not itself unlawful it may mean that there has been a breach of the Data Protection Act.

Drinking or drug taking, whether on or off duty, may be a “fair” reason for dismissal on the grounds of conduct or capability, under the Employment Rights Act 1996. However, it is not clear whether a drink or drugs problem comes under the sickness or misconduct procedure.

Other legislation

The main legislation in the UK for controlling the misuse of drugs is the Misuse of Drugs Act 1971. Nearly all drugs with misuse and/or dependence liability are covered by the Act. It makes the production, supply and possession of controlled drugs unlawful except in certain specified circumstances — for example, when they have been prescribed by a doctor. If employers knowingly permit the production or supply of any controlled drugs, the smoking of cannabis or certain other activities to take place on their premises, they could be committing an offence.

The Road Traffic Act 1988 states that 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 shall be guilty of an offence. An offence is also committed if a person unfit through drink or drugs is in charge of a motor vehicle in the same circumstances.

The Transport and Works Act 1992 made it a criminal offence for certain workers to be unfit through drugs and/or drink while working on railways, tramways and other guided transport systems. The operators of the transport system would also be guilty of an offence unless they had shown all due diligence in trying to prevent such an offence being committed.

Court cases

Workers whose performance, behaviour or attendance at work is affected by alcohol and drugs may leave themselves open to dismissal on the grounds of misconduct or capability.

Dismissal for possessing or consuming drugs and alcohol at work

To establish conduct as a reason for dismissal, employers must have a genuine belief on reasonable grounds, after reasonable investigation, that an employee was guilty of the misconduct in question.

If an employer has a drugs and alcohol policy in place, any dismissal is likely to be fair. However, it is important for the employer to communicate the policy to employees, including the consequences of breaching the rules and any changes to the rules. The employer should have carried out an investigation and looked at any mitigating circumstances.

In one case the employee’s defence was that his food had been “spiked” and he did not know he had taken drugs, but the Employment Appeal Tribunal (EAT) upheld his dismissal because the policy clearly stated that any employee found with traces of illegal drugs would be dismissed (SW Trains v Ireland EAT/0873/01).

A dismissal can still be fair even if the employer is willing to consider offering alternative employment to someone dismissed for gross misconduct, but this does not invalidate the dismissal. There can be circumstances where an employer could not trust the employee to perform one job properly while believing they were able to undertake less responsible work (Hamilton v Argyll & Clyde Health Board [1993] IRLR 99).

Tribunals generally take a very strict view of drugs-related and alcohol-related misconduct where health and safety considerations are involved.

Dismissal for drinking and drug taking outside working hours

The law allows an employer to dismiss an employee fairly for conduct outside work, but only if the behaviour is in some way related to work. The mere fact that an employee has been charged with an offence is not justification for dismissal without an investigation (Securicor Guarding v R [1994] IRLR 633). And in some cases an employer may be expected to await the outcome of any court case, according to guidance given by the EAT in the case of Ali v Sovereign Buses (London) Ltd EAT/0274/06.

Drug and alcohol testing and screening in the workplace

Employers only have limited rights to undertake random drugs or alcohol testing. If random testing is stipulated in the contract of employment, and the employee has accepted this, but then refuses a test, then s/he will be in breach of contract. Without such a contractual term, employers cannot require employees to take a test unless there are legitimate safety concerns.

In Morgan v Railtrack plc (ET No.2305231/02), the employee was dismissed for gross misconduct after setting the wrong route for a train and then leaving the workplace before he could be tested. The tribunal held that the employer was entitled to ask him to undergo medical screening.

In the case of O’Flynn v Airlinks EAT/0269/01, the EAT held that a company policy of zero tolerance on alcohol and drugs, which made it clear that the employer would randomly test employees and dismiss any who failed the test, was unlikely to be a breach of the Human Rights Act. The policy was reasonable, it said, taking account of the employer’s legitimate safety concerns.