I am an HR manager working in a construction company. We suspect that one of our employees, who works in a safety-critical role, has been using drugs. How should we deal with this?"


Ciara Fulton writes:


How you deal with this will largely depend on whether or not the Company has a Drug and Alcohol Policy, the reasons for your suspicions and the type of work the employee does.

The starting point will be to review the employee’s contract of employment and any relevant Drug and Alcohol Policy or other relevant policies and procedures. These policies and procedures may form part of the Company Handbook or the Company’s Health and Safety Policy.

Where drug misuse is suspected, the first step will usually be to conduct an informal interview with the employee to ascertain whether they are using drugs and, if so, whether the problem is health related. If it is, the Company should consider offering assistance to the employee to obtain treatment for the problem. This is because abuse of or addiction to alcohol and/or other drugs can be a serious health problem. While such health problems are not considered to be a disability for the purpose of the Disability Discrimination Act 1995 (as amended), illnesses resulting from such addictions can be a disability as can addictions to prescribed medication. In either case, the informal interview will be the only practical way of attempting to find out the reason for the conduct that causes you to suspect that the employee is taking drugs.

If the employee does not admit to having a problem and/or refuses to undergo appropriate treatment, it will be necessary to consider whether you have a right to require the employee to undergo a drug test. Such a test provides an objective way of telling if an employee is under the influence of drugs.

If the Company has a Drug and Alcohol Policy it may provide for random drug tests (which is not uncommon in safety-critical working environments such as you describe) and/or testing on the basis of suspicion. It is not clear why you suspect that this employee has been using drugs. However, in my experience, suspicions are usually aroused when an employer notices sudden mood changes, impaired job performance, increased frequent short term sickness absence, poor timekeeping, unusual aggression or irritability, involvement in an incident or dangerous occurrence or, in certain cases, dishonesty and theft. If any of these circumstances apply, then it is likely that you would have reasonable grounds for asking the employee undergo a drug test.

I recommend that you check whether or not you have the right to require the employee to undergo a drug test and, if so, on what basis you may do so. If the Policy requires the employee to participate in such tests and he/she refuses to do so, this may be a breach of the Drug and Alcohol Policy which could result in disciplinary action. If no such Policy exists, it will be necessary to obtain the employee’s consent to the test. However, failure to co-operate may be treated as failure to obey a reasonable work instruction, depending on the circumstances.

Employers have a duty under Health and Safety legislation to ensure, as far as is reasonably practical, the health, safety and welfare at work of their employees. Employees are required to take reasonable care of themselves and others who could be affected by what they do at work. If an employer knowingly allows an employee under the influence of drugs to continue working and his/her behaviour places the employee or others at risk, an employer could be prosecuted.

Accordingly, if there is an immediate safety risk, you may need to consider sending the employee home on full pay pending the outcome of such tests. Again, you should check whether or not you have the right to do this under the terms of the employee’s contract of employment or the Drug and Alcohol policy.


If the employee tests positive for drug use, whether or not disciplinary action/dismissal is appropriate will depend on a number of factors:

• Whether the employee has previously admitted having a problem with drug abuse.
• Whether the employee is willing to undergo treatment.
• The nature of the role and whether their work is safety critical.
• Whether it is possible to transfer the employee to other duties while they are undergoing treatment.
• Whether there have been any previous incidents/issues.

In general, disciplinary action should be a last resort and should only be taken following a full investigation of all the circumstances and compliance with the Company’s own Disciplinary Procedures or the Statutory Dispute Resolution Procedures, if none exist.


Conclusion


In conclusion, my immediate advice would be to check whether or not the Company has a Drug and Alcohol Policy and, if so, deal with the matter in accordance with that policy. If not, or if the Policy does not provide for it, I suggest that you conduct an informal interview with the employee and attempt to ascertain the reason for the conduct that has caused you to suspect that he/she is using drugs. If necessary, and bearing in mind the need for consent if the employee has not already consented to such tests as part of the Drug and Alcohol Policy, you may consider asking the employee to partake in a drug test. Depending on the outcome of this test, and taking into account the factors outlined above, you should then be in a position to assess whether or not the problem is health related and capable of treatment or whether the matter should be dealt with under the Company’s disciplinary procedure.