Feeling ‘Merry’ this Christmas?

As staff Christmas Parties and numerous social gatherings commence, employers must think about the morning after the night before! In an industry where most staff will be expected to drive vehicles, or operate machinery it is imperative that staff are fit and ready for the working day.

It is therefore a common question at such a time of, ‘Can we test staff for drugs and alcohol?’.

 The answer lies in the employee’s contract of employment;

-    If a provision is in place in the employee’s contract or staff handbook that ‘random’ testing can take place then the employer may undertake such a test. Such a policy will infer the employees consent, however this does not give the employer free reign to single someone out unnecessarily. The employer must hold a reasonable belief should they believe the employee is intoxicated. If the employee refuses when they have previously consented to the policy, disciplinary action may be taken.

-    If a contract of employment or handbook does not hold the relevant provision, an employer can ask employees if they would consent to a test. However the employer must be wary that the employee has a right to refuse, which can not automatically be held against them nor be treated as an admission of guilt.

Employers that don’t have a specific Drugs and Alcohol Policy should consider implementing one as soon as possible.  We can help.

Testing must not be abused and must when necessary be random against a number of staff. Here the employer holds a difficult balance between the rights of the individual employer and the workforce as a collective. There is an implied duty in contractual relationships that the employer provides a safe working environment and that there is a relationship of mutual trust and confidence between the employer and employee. Thus testing someone against their will would be a breach of the latter; however failing to test someone that could be danger to the workforce will breach the former.

It is therefore imperative to have a policy in place that can be enforced should the Employer need to. Employees that are tested and found to be intoxicated by drugs or alcohol on site should be sent home as they will be unsafe to work. This should be suspension pending investigation for a disciplinary hearing.

Published: 14 Dec 2012

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