Dismissal for the use of illegal drugs - an alternative to redundancy?

The concern among employees is that the growth of drug testing and where the use of drugs has been found subsequent dismissals is coincidental with the announcement of redundancies. The suspicion is that this is being used by employers as a way to avoid costly redundancy payouts.  

Whether or not there is any truth in this it prompts a consideration of the legal issues and potential pitfalls for the employer who might be looking to use drug testing for what could be seen as a ‘quick fix' in recessionary times.  Employers may think an employee who tests positive for an illegal drug, and is then dismissed for gross misconduct, has little scope to argue that their dismissal was unfair.  But this is not necessarily the case.

An employer must be able to justify the need to undertake testing for drugs for example because there are concerns about health and safety.  Testing should not be used simply as a means to identify any inappropriate drug use.  Therefore an employer who sends an employee for a medical check-up which incidentally reveals that they have used illegal drugs may not be able to discipline the employee unless the employee was informed in advance that if the medical highlighted drug use disciplinary action might follow.  Equally if the testing is random then it must be genuinely random otherwise an employer could be open to allegations of discrimination.

Where an employer decides there is a need to test for drugs the methods used may include blood tests or urine samples, breathalysers, or medical examinations.  For each method the employer will have to consider the accuracy and reliability of the tests and how to deal with an employee's refusal to take a test.  For example, if the consumption of any alcohol at work is prohibited an employee who refuses to take a breath test may give their employer grounds to discipline them.  However it may not be appropriate for an employer to discipline an employee who refuses to undertake a more invasive procedure such as a blood test, because they have a genuine phobia about needles.

For employers in the public sector or who provide services to employees in the public sector there is the additional risk that an employee subjected to such testing might claim that their human right to a private life had been infringed.

A positive test for an illicit drug does not give the employer the right to dismiss the employee on the spot.  The employer should follow their own disciplinary procedures before disciplining an employee.  Employees can still be awarded an uplift in compensation for unfair dismissal, if an employer has failed to follow the ACAS Code of Practice introduced in April 2009.

The fairness of an employer's decision to dismiss an employee as a result of a positive drug test may be questioned if the employee claims to have an addiction.  In such cases it may be more appropriate to treat the employee as if they have an illness than to dismiss for misconduct.  If so other factors will come into play, such as whether the employer should seek medical advice about the prognosis for recovery, as well as the provision of support for the employee by way of counselling.  A referral to an occupational health practitioner might also be sensible.  Each case will be different and the outcome will inevitably depend on what the employee's job is and how a positive test may impact on their ability to undertake that role.

While drug addiction of itself does not amount to a disability, the side effects of addiction including mental illnesses such as depression and schizophrenia could be.

How an employer will deal with all of these issues can be covered in a comprehensive drugs policy.  Such a policy would set out a clear objective, explain what is considered to be drug misuse, outline the testing process and the disciplinary action that may result from a positive test.  It will also provide details of the support available to drug misusers.

Whether drug testing is actually being used by businesses as a device to end employment other than through redundancy, or if the evidence of increased drug testing is simply a reflection of employers' refusal to tolerate underperformers in the current economic climate, employers should be careful.  Drug testing can have a negative impact on employee relations, especially in sectors which have shown a tolerance towards a recreational drugs culture.  As well as being intrusive and potentially alienating, studies have provided little evidence to show that drug testing improves performance and productivity.

Roger Byard, partner and head of employment  at Cripps Harries Hall LLP