Workplace policies on drugs and alcohol can be complex, requiring careful consideration of legal, health, and disciplinary issues. Taking our cue from cases in this area, here are our top tips for best practice in this area.

  1. Establish a clear policy

A well-defined drugs and alcohol policy is essential for employers. Key elements include:

  • Disciplinary measures: Specify that being under the influence, failing a test, or refusing a test can constitute gross misconduct.
  • Search rights: Include reasonable rights to search bags, lockers, and desks if there’s evidence of substance possession.
  • Policy scope: Address alcohol/drug use versus dependency, offering support for medical issues and distinguishing disciplinary actions accordingly.
  • Testing procedures: Testing policies should outline consent requirements, processes, and consequences for refusal.

  1. Testing: give clear consideration to reasonableness and privacy

Drug and alcohol testing must be reasonable, particularly in safety-critical roles. Testing should only be conducted when justified by a documented risk assessment. Employers should:

  • Use less intrusive methods before resorting to tests.
  • Obtain employee consent, backed by a contractual agreement.
  • Treat refusal to test as potential misconduct if the policy explicitly states this.
  • Be aware that test results are sensitive data. Employers must handle them transparently and in compliance with any privacy notice or general data protection principles.

  1. Acting on test results

Employers must act reasonably when a test result is positive. Case law underscores the importance of considering mitigating factors.

  • Investigate thoroughly: Assess the circumstances behind a positive result. For instance, in Ball v First Essex Buses Limited, a dismissal was deemed unfair due to inadequate consideration of alternative evidence.
  • Consider dependency issues: Employees who disclose dependency or related health issues should receive support, as seen in Krolik v Young’s Seafood where an employee was accused of being under the influence of alcohol at work, having consumed beer in the early hours of the morning before her afternoon shift. She was dismissed for gross misconduct, with the employer stating that they felt she was using alcohol issues and menopause as an excuse for her behaviour. No support was offered to Ms Krolik, despite the business’s policy expressly stating that those who sought help for substance issues at work would be offered support. Ms Krolik succeeded in her claim for unfair dismissal.

  1. Specific scenarios

  • Smelling of alcohol: In McElroy v Cambridgeshire Community Services NHS Trust, dismissal for smelling of alcohol without evidence of impaired performance was found to be unreasonable.
  • Drug possession: Possessing illegal drugs at work typically justifies dismissal for gross misconduct. As with all conduct dismissal cases, the applicable test is the one set out in BHS v Burchell: did the employer hold a reasonable belief, following a reasonable investigation, that the employee had committed an act of gross misconduct. In Asda Stores v Coughlan the Employment Appeal Tribunal held that summary dismissal was within the band of reasonable responses open to Asda when it found its employee to be in possession of cannabis at work.

Key takeaways

  • Review or introduce a robust drugs and alcohol policy with employee consultation.
  • Consider carefully whether testing is required in the workplace. Carry-out a risk assessment and ensure testing is proportionate and justified on health and safety grounds.
  • Approach positive tests and related incidents with fairness, considering individual circumstances and dependency issues.
  • Ensure data protection obligations are met when handling test results.

By balancing safety, fairness, and legal compliance, HR professionals can manage drugs and alcohol issues with confidence – while ensuring dignity and support for those affected.