Q: I suspect an employee may be under the influence of drugs when he is at work. This is extremely worrying as he operates machinery. I own a small business and nothing like this has happened before so I’m not sure how to handle it without getting myself into trouble. Can I demand he takes a drugs test? Can I dismiss him if he refuses or takes a test that proves positive? What does the law say I can do?
A: If you want an employee to take a drugs’ test you must get their consent. If they refuse and you have good grounds for wanting them to be tested, they may face disciplinary action. If you have employees operating machinery, then you should have a full contractual health and safety policy within your employee contract and handbook that includes disciplinary procedures for drug and alcohol use in the workplace.
Whilst it is perfectly lawful for you to carry out testing, and for you to dismiss an employee for failing a drug test, you must ‘act reasonably’ at all times in order to avoid a case of unfair dismissal being brought against you. For example, there have been cases where unfair dismissal cases have been upheld because substance test results have been found to be unreliable or purportedly carried out incorrectly.
Some employers opt to carry out regular ‘random’ testing on all employees who operate machinery, this way they cannot be accused of discrimination. However, ‘cause’ testing where an employee’s behaviour suggests they may be under the influence is acceptable.
Depending on company policy, dismissal is usually the last and most severe consequence. Many employers have a three-strike rule concerning these matters, whilst others may take disciplinary action before dismissal. Perhaps in respect of your current predicament this might be a good time to seek legal advice to review your policies and procedures and ensure you stay within the law?
This question has been answered by James Denton, a Solicitor with GHP Legal. If you would like to speak to someone about this or any other legal matter, please visit our website www.ghplegal.com and use the contact us form, or call us on: Wrexham 01978 291456, Llangollen 01978 860313, Oswestry 01691 659194