UK Laws on Workplace Drug Testing
Unlike in the United States, the legal scope on drug testing at work in the United Kingdom is more lax. According to the 2004 report from the Independent Inquiry on Drug Testing at Work (IIDTW), facilitated by DrugScope and funded by the Joseph Rowntree Foundation and the Network of European Foundations, there is no direct legislation on the interpretation of a range of provisions in health and safety, employment, human rights and data protection law.
In the UK, drug testing in the workplace is a major issue of privacy. And as a rule of thumb, employers must not take on the role of policing their employees unless their behaviour or ability to do the job is affected. Except for industries where drug testing is a matter of personal and public safety or security rather than productivity, UK employers who force employees to take drug tests could expose themselves to a legal battle under the Human Rights Act 1998 and the Data Protection Act 1998.
Among the emerging issues for jurisprudence on workplace drug testing are based on the following principles, that:
- People are entitled to a private life;
- Employers are required to look to the safety of the public;
- People are entitled to dignity; and
- People are entitled to proper quality standards for evidence used against them in court or disciplinary proceedings.
While drug testing at work in the UK is legally permitted, an employer who wants to perform the procedure must properly communicate the policy to all employees and the drug testing rules must be governed by the existing guidelines from the National Workplace Initiative1 and from the Health and Safety Executive (HSE). Some of the known industries that have introduced and are implementing random drug testing in the workplace for several years include energy, transport, mining, quarrying, pipeline, shipping, as well as the armed forces.
Although there has been little case law on drug testing arising from the Human Rights Act 1998 and the Data Protection Act 1998, some of the issues have been clarified to some degree with the publication by the Information Commissioner of the consultation draft of Part 4 of the Employment Practices Data Protection Code in November 2003 (Information Commissioner, 2003). According to the Commissioner’s draft code, the legitimacy of drug testing will depend on showing that there are health and safety concerns and on providing evidence of real (not assumed) impairment of performance.
In addition to the provisions mentioned above, UK employers has a general duty under the Health and Safety at Work etc Act 1974 (HSW Act) to ensure, as far as is reasonably practicable, the health, safety and welfare at work of their employees. The employer also has the duty under the Management of Health and Safety at Work Regulations 1992, to assess the risks to the health and safety of your employees. That being said, an employer could be held liable if s/he knowingly allows an employee who is under the influence of drug misuse to continue working and his or her behaviour places the employee or others at risk.
In the transport industry, the Transport and Works Act 1992 makes 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; whereas, 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.
This legal position provides a clear picture that unlike in the United States the UK government’s drug strategy does not exactly push for drug testing campaigns at work, but instead refers employers to the guidance of existing ordinances or legislations. To fill the gaps, the 2004 IIDTW report recommended that the UK government should produce clear and definitive guidance on drug testing at work – particularly on the legal aspects – since there isn’t sufficient data that currently exist about the extent of drug testing at work in the country. Furthermore, additional monitoring and research are still needed to see solid evidence that drug testing at work has some indeed significant deterrent effect.
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