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Wednesday, 3 October 2023

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Employment

Drug testing and employee monitoring

Your employer might monitor you at work, if it’s necessary for them to carry out their health and safety duties. Where monitoring involves taking data, images or drug testing this should be done in a way that is lawful and fair to you. Find out about your rights.

Drugs and the workplace

Any employer will be keen to keep drug misuse away from the workplace. As well as causing ill-health, drug misuse increases the chances of accidents at work and interferes with how much work is done.

Because of the safety risks from drug misuse, your workplace is advised to have a policy on the issue. The policy could be drawn up between employer and staff or staff health and safety representatives. Your employer has legal responsibilities to look after your health and safety as far as reasonably possible and must assess any possible risks. Any drugs policy should set out:

what the policy is trying to achieve
how any tests will be carried out
what support is available to drug misusers
what disciplinary action may be taken

Health and safety representatives

Drug testing and your rights

Your employer may decide to test for drugs in employees. To do this, however, they need employee consent. This should normally be given where your employer has grounds for testing you under a full contractual occupational health and safety policy. The policy should be set out in your contract of employment or in the company handbook.

Your employer should limit testing to the employees that need to be tested to deal with the risk. If your employer wants to carry out random tests of these employees, the tests should be genuinely random. It's potentially discriminatory to single out particular employees for testing unless this is justified by the nature of their jobs.

Searching employees is a sensitive matter and your employer is recommended to have a written policy on this. Searches should respect privacy, for example, be carried out by a member of the same sex and take place with a witness present.

You can't be made to take a drugs test, but if you refuse when your employer has good grounds for testing you under a proper occupational health and safety policy you may face disciplinary action, including being sacked.

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Being dismissed by your employer

Email and CCTV monitoring

You should expect some monitoring at work by your employer – it’s necessary for them to carry out their health and safety duties. However, where monitoring involves taking data or images, like email and CCTV, this must be done in a way that’s lawful and fair to you.

The amount of monitoring should be clearly set out by your employer, eg in your contract or company handbook. If you are under surveillance, this should be made clear. You should also be told what is a reasonable number of personal emails and phone calls in any given period or be told if they are not allowed at all. Examples of surveillance can range from looking at which websites you have visited, for example, to see if pornography has been downloaded, to checking your bag as you leave, to combat theft.

You have the right to keep your personal life private and to some privacy at work. This means you can’t be monitored everywhere (for example, in the toilet). If your employer doesn’t respect this they could be in breach of the Data Protection Act.

Under the Data Protection Act any monitoring must normally be open and there should be good reasons for your employer or others to do it. Your employer should carry out an assessment of its effects before allowing its use.

Resolving a dispute

If you are unhappy with being tested for drugs or monitored at work, check your company handbook, contract or written statement first to see if your employer is expressly allowed to do this. If not, you should raise the problem with your employer informally. If this doesn't work, your organisation should have a grievance procedure - the details should be in your company handbook, contract of employment or written statement.

If the policy isn't contractual, you might be able to resign and claim unfair 'constructive' dismissal for breach of the implied term of trust and confidence, but this will depend on the facts and can be difficult to prove. You might also have a claim for discrimination or a criminal claim of assault or false imprisonment if a search or drug test is badly handled.