The January theme of blogs tends to be ‘Blue Monday’, Dry/Veganuary and how to cheer up our staff in the bleakest month of the year (yes at the time of writing it is STILL January, it’s still generally raining all the time, and it’s still dark when we go to work). Drug use may seem a bit of a strange one.  

What we do see spilling over into Jan is the disciplinaries and investigations from December where someone has perhaps had a little bit too much fun at the Christmas party or overindulged the night before having to go to work.  

The Office of National Statistics stated that compared to 10 years ago levels of drug use are higher in the UK with 17.6% of people in the UK between the ages of 16-24 reporting they have used drugs in the last 12 months. The majority of adults aged 16-59 who reported using any drug were classed as ‘infrequent’ users with a use of only once or twice with anecdotal commentary suggesting that there is a more concentrated use around the festive and party period.   

So what do employers do when they suspect someone might have overindulged and presented for work, potentially with drugs still in their system have partied a little bit too hard the night before? Let’s talk about drug testing.  

How do employers approach drug testing in the workplace?

When I first entered the world of law drug testing in the workplace was serious business. It usually involved having to book an external tester or professional to come in with what looked like a mobile laboratory. All very impressive, all very serious. And I know, I clearly don’t look old enough to be able to give anecdotes like this #thanks 

Alcohol testing didn’t present so much of an issue in terms of access to testing, was easy enough to do, and drug testing didn’t seem to feature particularly.  

Whether there is an increased prevalence of drug use either in the workplace or spilling over into the workplace after a night out, I couldn’t tell you with any figures of integrity. There are conflicting reports of an increase in testing (those who sell tests and CPD seem to think it is on the increase), whereas the TUC in 2019 said there was no real evidence that drug testing was becoming commonplace, however, I was then able to find an undated article that stated the opposite! 

Personnel Today reported in 2022 that the vast majority of employees are relaxed about testing which would suggest it is becoming more commonplace.  

The starting point should always be the contract or your policies, do you have the right to ask an employee to take a drug test if you suspect something is awry, whether because of behaviour, presentation or a report from another staff member?  

If you have this ability to ask, you can go ahead and conduct the test (often employers have kits now that are sent off). Ensuring that you follow a process that ensures the dignity of the employee and as set out in your policies.  

If you don’t have a policy, you can of course ask an employee to submit to a test, however, if they refuse where does this leave you? 

Can employees be exempt from drug testing?

You can as an employer give a ‘reasonable management instruction’ and if an employee fails to follow a reasonable instruction, consider disciplinary measures, particularly if it is in the face of negative behaviour and a reasonable request to undertake a test.  

For ‘spot checking’ in for example driving roles, front line medical care or machinery operators it is important again for this to be covered by the policy and for spot checking to be applied in a consistent manner, without discrimination and at all times following the procedures that have been set out.  

In terms of whether it is fair to dismiss, it is crucial that employers don’t have a ‘knee jerk’ reaction to a positive test result and immediately dismiss. As with all disciplinary measures, any response must be proportionate and take account of the circumstances of the case, any mitigation, long service and any other relevant factors, or there is a very real risk of an unfair dismissal finding. 

Are you ready to become your workplace hero?

In summary, navigating the complexities of workplace drug testing demands a thoughtful and well-informed approach. Employers seeking guidance in this area should consult with employment law experts to ensure fair and legally sound practices in their organisations. That’s us!

If you’re unsure how to conduct drug testing in your workplace, contact our employment law experts today.