Frequently asked question
My company wishes to introduce alcohol testing in the workplace. I am aware that staff consultation is required and that this testing needs to be incorporated in an employees contract. Can you advise on the legal implications of random testing employees if they have not given specific written consent? Are they able to resist testing being written into their contract on an individual basis?
You have a general duty under the Health and Safety at Work etc Act 1974 to ensure, as far as is reasonably practicable, the health, safety and welfare of your employees. If you knowingly allow an employee under the influence of excess alcohol to continue working and this places the employee or others at risk, you could be prosecuted.
Similarly, your employees are also required to take reasonable care of themselves and others who could be affected by what they do. In the transport industry, there is additional legislation in place to control the misuse of alcohol and drugs. The Transport and Works Act 1992 makes it a criminal offence for certain workers to be unfit through drink and/or drugs while working on railways, tramways and other guided transport systems. The operators of the transport system would also be guilty of an offence unless they had shown all due diligence in trying to prevent such an offence being committed.
Agreement to the principle of screening must be incorporated in each member of staff’s contract of employment. For new staff, this is fairly straightforward but existing staff are under no legal obligation to agree to changes in their terms and conditions of service. If an employer tried to force a test on an unwilling employee, the employee could resign and claim ‘constructive dismissal’.
In addition to changes to the contract of employment, you should obtain the written consent of the individual for each test. This consent applies only to tests relating specifically to alcohol and to no other substances, condition or disease.
Where more extensive testing is required (ie for drug abuse), you should obtain further consent from the employee. Employers should ensure that employees are fully aware of this requirement. Medical confidentiality should be assured – you should only tell managers whether an employee is considered fit or unfit for work.
Testing requires the introduction of a ‘chain of custody’ procedure to ensure that samples are actually provided by the person being screened, samples cannot be tampered with, accurate laboratory analysis and interpretation is guaranteed, and appropriate action is taken when a test result is positive. Any laboratory accredited by the National Measurement Accreditation Service will have satisfied assessors that it provides a service that meets all criteria.