3. Official guidance on drugs and alcohol at work

Government organisations have produced a range of guidance on drugs and alcohol at work, which union representatives can make use of when negotiating agreements on the issue or doing individual case work. In particular, guidance from the Acas arbitration and conciliation service, the Information Commissioner and the Health and Safety Executive (HSE) are most informative.

Acas guidance

Acas provides guidelines on drugs and alcohol policies in its Health, work and wellbeing booklet.

For example, Acas states that an alcohol policy is one of the most constructive ways of dealing with drink related problems. It says the policy should be designed to assure those with an alcohol problem that they will be treated fairly and sympathetically and thus encourage them to seek help and assistance. Any policy needs to be developed with the commitment and involvement of both senior and middle management. Workers and their representatives should also be consulted and their views taken into account (see checklists on pages 19 and 21).

Acas argues that the purpose of any alcohol or drugs policy is to ensure problems are dealt with effectively and consistently. Policies should “protect workers and encourage sufferers to seek help.”

HSE on drug and alcohol issues

The Health and Safety Executive (HSE) provides some guidance on drugs and alcohol misuse at work. It points out that employers and workers have duties under the Health and Safety at Work etc Act 1974, the Management of Health and Safety at Work Regulations 1999 and road traffic legislation in terms of safe working.

HSE advice is that “employers should adopt a substance misuse policy, in consultation with their staff.” It says “this policy should aim to support affected employees rather than punish them” and that “if an employee admits to being a drug user, your policy should seek to help them rather than lead simply to dismissing them.”

It also warns employers about drug and alcohol testing, arguing that “screening by itself will never be the complete answer to problems caused by drug misuse.”

The Employment Practices Data Protection Code

In 2004, the Information Commissioner, who is responsible for the Data Protection Act published the fourth and final part of the Employment Practices Data Protection Code — Information about Workers’ Health. It contains important safeguards on drug testing at work and states that drug testing at work can only be justified on health and safety grounds, and that employers who test for drugs should have a proper system in place to ensure testing is done fairly.

It advises employers that: “Before obtaining information through drug or alcohol testing, ensure that the benefits justify any adverse impact, unless the testing is required by law.”

The Code effectively outlaws blanket drug testing. It tells employers that: “The collection of information through drug and alcohol testing is unlikely to be justified unless it is for health and safety reasons” and to only use drug or alcohol testing “where it provides significantly better evidence of impairment than other less intrusive means.”

It states that: “Collecting personal information by testing all workers in a business will not be justified if in fact it is only workers engaged in particular activities that pose a risk.” It says that even in safety-critical businesses such as public transport or heavy industry “workers in different jobs will pose different safety risks. Therefore collecting information through the random testing of all workers will rarely be justified.”

Using the rail industry as an example, the guidance accompanying the Code says that drug misuse by train drivers and signallers would pose a significantly greater safety risk than misuse by a ticket inspector or rail clerk.

Where testing is used, the Code is clear that 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.” It states employers must “ensure that workers are fully aware that drug or alcohol testing is taking place, and of the possible consequences of being tested.”

The Code also makes clear that employers should have a drugs and alcohol policy. It says employers should “explain your drug or alcohol policy in a staff handbook” and “explain the consequences for workers of breaching the policy.”

Guidance published with the Code confirms the rights of safety reps, saying that they “have a legal right of access to information that they need to fulfil their functions.” Although an employer should not provide data identifying an individual worker unless that worker has given their consent “the law does not prevent an employer from providing anonymised information to a safety representative.”

Unions have expressed some concerns about the Code — for example, it allows drug testing in cases of breach of contract or where there is a risk of “serious damage to the employer’s business” — but its publication has generally been welcomed.

TUC head of safety Hugh Robertson said: “The Code reinforces the provisions of the Data Protection Act in that it greatly restricts the way that employers can collect and use personal health data. This guidance will be of great use to unions that are resisting both genetic and drug testing in the workplace.”