High on the Agenda

July 1, 2013

 

Demolition companies should be reviewing their policies on drug testing employees following the recent tragedy in Philadelphia: an excavator, who was allegedly high on marijuana, has been charged with six counts of involuntary manslaughter after the remains of a four-story building crushed an adjacent charity shop with shoppers and workers inside. 
There is a risk of such incidents occurring in the UK and, were that to happen, demolition firms would almost certainly face compensation claims and criminal charges of corporate manslaughter. To reduce this risk, firms should consider implementing a process of regular and random drug testing of those staff operating heavy equipment. Here is some guidance on how a demolition firm could go about introducing such measures. 
The legal position
Under the Health and Safety at Work Act 1974, employers have a duty to ensure a safe place of work and safe systems of work for their staff. When considering substance misuse, this should include having clear rules about coming to work under the influence of alcohol or drugs and about drinking alcohol or drug taking while at work. However, there is no strict requirement to carry out testing of staff.
Guidance about drug and alcohol testing is also contained in the Employment Practices Code, published by the Government's Information Commissioner's Office.  This explains that:
when embarking on tests of these nature, firms must ensure that the benefits justify any adverse impact. To achieve this, an impact assessment ought to be carried out. The policy should only be implemented if the benefits for your business are found to outweigh the impact on staff; and 
post-incident testing is more likely to be justified than random testing.
Failure to comply with the Employment Practices Code may also amount to a breach of the Data Protection Act 1998 in which case the Information Commissioner’s Office can investigate, conduct audits, issue enforcement notices, and in the most serious cases impose fines of up to £500,000.
Is testing justified for your business? 
Because of the intrusive nature of testing, employers must have a good reason to justify a policy of testing staff and should always consider whether there is a less intrusive means of monitoring employees.
Random testing of employees is more likely to be justifiable if there is a strong health and safety reason, as is the case where demolition staff operate heavy machinery.  In contrast, it will be harder to justify testing for employees who are office-based, because there is a lower risk of danger to life in their workplace activities. 
Alternatively, where an employer reasonably suspects an employee is under the influence of alcohol or non-prescribed drugs at work, (e.g. after an incident, or if the individual exhibits abnormal behaviour or appearance) they may be able to justify “post-incident” testing of individuals. 
Employers should keep in mind, however, that testing should be confined to ensuring safety at work, rather than to reveal any use of substances in an employee’s private life.
Policy planning: what, who and how?
The testing will reveal highly sensitive personal data and real care must be exercised to avoid a serious breach of the Data Protection Act 1998.  Consider what data you wish to obtain, who you wish to obtain it from, how you will keep such sensitive personal data and how it will be used. The amount of personal information gathered should be kept to a minimum, and the least intrusive means of testing possible should be employed. Consider whether all staff will be tested, or only certain categories of employee, such as those actually working on demolition sites. 
Give staff several weeks’ warning that the policy will be introduced, and explain your reasons for introducing the policy. Staff should also be given an indication as to the consequences of failure to comply. They should be afforded the opportunity to ask questions and discuss the policy in person before it is implemented.  Common concerns are that testing will reveal medical conditions and/or use of prescribed medicines, which employees had not wanted to reveal to their employer.  
Be aware of the potential consequences 
Implementing a programme of random drug testing will not be popular amongst staff. As such, employers must be alive to the risk of potential claims arising from implementation:-
Discrimination – Reasonable adjustments may be required to modify testing procedures which cause a disabled person to be disadvantaged. For example, would a disabled person fail to pass the test because of the medication they are taking?  Where an employer decides to test only certain categories of employee (e.g. those operating heavy machinery but not those based in the office), there is a risk of complaints of indirect discrimination. For example, if you only test machine-operators and the majority are black, there is a risk of indirect race discrimination if you do not test office workers and the majority are white. An employer can defend a complaint of indirect discrimination if it can justify the difference in treatment. This is where the impact assessment ought to be extremely useful.
Breach of contract – Consent is required for testing. If an employee refuses to consent and the employer proceeds anyway or disciplines the employee for refusing to consent, this may give rise to allegations that the employer is acting in breach of the implied term of trust and confidence, and that the employee has been constructively dismissed. 
Enforcement – If an employee refuses to consent to testing, this can be treated as a misconduct offence. However, if disciplinary action results in a dismissal, the employer may well face complaints of unfair dismissal.  If there is mass objection to the policy, employers should be mindful that back-tracking (whilst an easier option) might make worse cultural issues within the firm and increase the risk of tragedy on a demolition site. 
Compensation for a claim of unfair dismissal is currently capped at £74,200 based on the claimant’s lost earnings, plus a basic award calculated in the same way as a statutory redundancy payment.  Compensation for a successful claim of discrimination is also loss based, but is not subject to any cap.  
Be prepared for the aftermath
If you do discover that your staff are dependant on alcohol and/or drugs, you need to decide how you are going to react. An employer will need to decide what its approach to staff dependant on alcohol or drugs will be: supportive, disciplinary or a mixture of the two.

Demolition companies should be reviewing their policies on drug testing employees following the recent tragedy in Philadelphia: an excavator, who was allegedly high on marijuana, has been charged with six counts of involuntary manslaughter after the remains of a four-story building crushed an adjacent charity shop with shoppers and workers inside.

There is a risk of such incidents occurring in the UK and, were that to happen, demolition firms would almost certainly face compensation claims and criminal charges of corporate manslaughter. To reduce this risk, firms should consider implementing a process of regular and random drug testing of those staff operating heavy equipment. Here is some guidance on how a demolition firm could go about introducing such measures.

The legal position

Under the Health and Safety at Work Act 1974, employers have a duty to ensure a safe place of work and safe systems of work for their staff. When considering substance misuse, this should include having clear rules about coming to work under the influence of alcohol or drugs and about drinking alcohol or drug taking while at work. However, there is no strict requirement to carry out testing of staff.

Guidance about drug and alcohol testing is also contained in the Employment Practices Code, published by the Government's Information Commissioner's Office.  This explains that:

  • when embarking on tests of these nature, firms must ensure that the benefits justify any adverse impact. To achieve this, an impact assessment ought to be carried out. The policy should only be implemented if the benefits for your business are found to outweigh the impact on staff; and 
  • post-incident testing is more likely to be justified than random testing.

Failure to comply with the Employment Practices Code may also amount to a breach of the Data Protection Act 1998 in which case the Information Commissioner’s Office can investigate, conduct audits, issue enforcement notices, and in the most serious cases impose fines of up to £500,000.

Is testing justified for your business?

Because of the intrusive nature of testing, employers must have a good reason to justify a policy of testing staff and should always consider whether there is a less intrusive means of monitoring employees.

Random testing of employees is more likely to be justifiable if there is a strong health and safety reason, as is the case where demolition staff operate heavy machinery.  In contrast, it will be harder to justify testing for employees who are office-based, because there is a lower risk of danger to life in their workplace activities.

Alternatively, where an employer reasonably suspects an employee is under the influence of alcohol or non-prescribed drugs at work, (e.g. after an incident, or if the individual exhibits abnormal behaviour or appearance) they may be able to justify “post-incident” testing of individuals.

Employers should keep in mind, however, that testing should be confined to ensuring safety at work, rather than to reveal any use of substances in an employee’s private life.

Policy planning: what, who and how?

The testing will reveal highly sensitive personal data and real care must be exercised to avoid a serious breach of the Data Protection Act 1998.  Consider what data you wish to obtain, who you wish to obtain it from, how you will keep such sensitive personal data and how it will be used. The amount of personal information gathered should be kept to a minimum, and the least intrusive means of testing possible should be employed. Consider whether all staff will be tested, or only certain categories of employee, such as those actually working on demolition sites.

Give staff several weeks’ warning that the policy will be introduced, and explain your reasons for introducing the policy. Staff should also be given an indication as to the consequences of failure to comply. They should be afforded the opportunity to ask questions and discuss the policy in person before it is implemented.  Common concerns are that testing will reveal medical conditions and/or use of prescribed medicines, which employees had not wanted to reveal to their employer.  

Be aware of the potential consequences 

Implementing a programme of random drug testing will not be popular amongst staff. As such, employers must be alive to the risk of potential claims arising from implementation:-

Discrimination

Reasonable adjustments may be required to modify testing procedures which cause a disabled person to be disadvantaged. For example, would a disabled person fail to pass the test because of the medication they are taking?  Where an employer decides to test only certain categories of employee (e.g. those operating heavy machinery but not those based in the office), there is a risk of complaints of indirect discrimination. For example, if you only test machine-operators and the majority are black, there is a risk of indirect race discrimination if you do not test office workers and the majority are white. An employer can defend a complaint of indirect discrimination if it can justify the difference in treatment. This is where the impact assessment ought to be extremely useful.

Breach of contract

Consent is required for testing. If an employee refuses to consent and the employer proceeds anyway or disciplines the employee for refusing to consent, this may give rise to allegations that the employer is acting in breach of the implied term of trust and confidence, and that the employee has been constructively dismissed.

Enforcement

If an employee refuses to consent to testing, this can be treated as a misconduct offence. However, if disciplinary action results in a dismissal, the employer may well face complaints of unfair dismissal.  If there is mass objection to the policy, employers should be mindful that back-tracking (whilst an easier option) might make worse cultural issues within the firm and increase the risk of tragedy on a demolition site.

Compensation for a claim of unfair dismissal is currently capped at £74,200 based on the claimant’s lost earnings, plus a basic award calculated in the same way as a statutory redundancy payment.  Compensation for a successful claim of discrimination is also loss based, but is not subject to any cap.  

Be prepared for the aftermath

If you do discover that your staff are dependant on alcohol and/or drugs, you need to decide how you are going to react. An employer will need to decide what its approach to staff dependant on alcohol or drugs will be: supportive, disciplinary or a mixture of the two.

 


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