In her latest article Kiera Lee, Director in Mills Selig discusses the importance of having an alcohol and drugs policy in place with clear rules about the consequences of working under the influence of drugs and alcohol.  She also states that it is important that the policy is made readily available to each employee at the start if their employment, which makes it easier to screen employees with little protest.

Alcohol and drugs are a common feature of modern life and can impinge on the workplace. Employers have become increasingly aware that the increased use of substances amongst employees can cause problems in the workplace such as reduced perceptual abilities, less efficiency and more absences. This is not just a disciplinary issue but a health and safety concern.

What is the law?

There are many legal issues arising from drug and alcohol screening such as rights to privacy and claims for defamation, discrimination and constructive dismissal. The relevant health and safety at work legislation for Northern Ireland (Health and Safety at Work (Northern Ireland) Order 1978) makes it mandatory for employers to ensure their employees are not under the influence of alcohol or drugs whilst working. When performing drug or alcohol tests within the workplace, it is vital that the employer obtains the employees’ written consent. If an employer wishes to introduce drug and alcohol testing, it must be for good reason and it must be incorporated either in the employees’ contract of employment or in the employer’s policy.

Getting the policy down on paper

For some employers, having procedure documented within a non-contractual policy is sufficient. However, for those employers in industries where working under the influence of alcohol or drugs could have health and safety considerations (for example, aviation, rail or vehicle driving, or in factory or similar environments) employers should consider having specific wording within the employee’s contract of employment. This wording should make it clear that it is a condition of the employee’s employment that they are not working under the influence of drugs or alcohol.

If a policy is non-contractual, it will allow the employer to change the policy as the need arises without obtaining the consent of the whole workforce. Further, a non-contractual policy helps an employer to minimise the risk that the employer’s failure to follow its own policy would amount to a breach of the employee’s contract of employment.

Whether the employer’s approach to drug and alcohol use is captured in the contract of employment or company policy, the employer should ensure that it explains:

• the disciplinary action which an employee may face if they contravene the policy;
• the process to report any suspected breach of the policy by colleagues or management;
• whether it (the employer) can search a member of staff or their belongings;
• whether, and in what circumstances, a random test may be performed;
• whether there are treatment programmes available to help employees recover;
• how any absence caused by alcohol or drugs will be treated;
• that the process will be strictly confidential. The employer should also ensure that it has in place a process to securely store any samples or information, that it retains any samples or information no longer than is necessary, and when the samples or information are obsolete that these are safely destroyed.

Organisation Culture considerations

When creating a drugs and alcohol policy, an employer will need to decide what approach it will take to staff who have a dependency on alcohol and drugs. Will it be supportive, disciplinary or a mixture of both? The Health and Safety Executive for Northern Ireland recommends that employers should ensure that training is provided to relevant staff and managers where alcohol and dependency issues arise. When creating or updating their policy, employers should bear in mind that getting their employees on side will be much easier if employees have been consulted with about the changes first and understand the importance for their business to introduce or amend this policy.

GDPR

The General Data Protection Regulation (GDPR) requires that all employers have a policy document in place that clearly states how data that is deemed a “special category of personal data” is handled. While it is lawful under the GDPR to collect medical information, this is only in circumstances when it is necessary for the purposes of the employer’s legitimate interests. All employers who conduct drug or alcohol screening should ensure that their policies, and the processes within them, comply with the GDPR.

Conclusion

Having an alcohol and drugs policy is in place with clear rules about the consequences of working under the influence of drugs and alcohol and that policy is made readily available to each employee at the start if their employment, makes it easier to screen employees with little protest. It also makes any disciplinary process much more straightforward.

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Please Note: Kiera Lee is speaking at this year's Annual Review of Employment Law conferences with Sandra Wright, Senior HR Manager, Ulster Bank / RBS.

Session Title: HR & Technology - AI in HR (NOTE: This session will run on 7th Nov only. Our HR & Technology session on 19th Nov focusses on workplace cybersecurity).

Find out more about the Annual Review of Employment Law 2019 conference, including the full programme, speaker list and how to book your place here:

• Annual Review of Employment Law 2019 - Titanic Belfast - Thursday 7th November - Only a few places remaining!
• Annual Review of Employment Law 2019 - Crowne Plaza, Shaw's Bridge, Belfast - Tuesday 19th November