Here we go into the UK Festival Season, also known as “the Great Rains”. A long weekend in a field with several thousand others, the air full of burnt fat, off your head on junk food additives and up to your ankles in mud. Outside your tent it’s even worse. Is it any wonder that the incidence of drug-taking at Festivals is so high? Now there you are as employer instead, wondering faintly whether the vacant look of your newly-returned Festival-goer is merely the product of his not having slept for 96 hours or the after-effects of his ingesting large quantities of something distinctly illegal over the weekend. How do you find out? What then?
Managing drug abuse in the workplace can be a significant problem for employers; managing it outside the workplace is even more tricky. The legal position on testing at work is confused; there is no direct legislation, and there must be a consideration of health and safety, employment, human rights and data protection laws. Regardless of whether or not it has a contractual right to screen employees, an employer needs employee consent to carry out physical tests for drugs due to their intrinsically intrusive nature — urine and hair samples, for example. The obtaining of samples from an employee without consent would constitute a criminal assault even where the employer has a contractual right to require a test. A refusal to give that consent may however be the basis of an inference drawn against the employee – there is no “right of silence” in these things.
If a ‘positive’ result is obtained the employer will then need to consider what action to take. It’s about drugs – surely you just sack him immediately? No. While it is true that employees guilty of drug use, even outside work, leave themselves exposed to dismissal on grounds of either capability, conduct or “some other substantial reason” (especially if use of the drugs in question is itself illegal) that decision cannot be automatic. Relevant arguments when considering dismissal for drug-taking outside the workplace could include:
- the effect it has on the employee’s ability to carry out his job – if this is limited or none, dismissal will be hard to justify;
- the impact on the trust and confidence previously held in that employee by the employer, especially if criminality is involved; and
- the potential or actual damage to the employer’s reputation.