Law: Randomly testing time

As surveys reveal a rising tide of workers using illegal drugs, more employers are implementing random testing. But is it really the answer?
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There are no half measures with random drug testing at work - you either support it or you don't. But given the scale of the problem, the arguments in favour seem irrefutable as it is estimated that three out of four people with alcohol problems and one in four who misuse drugs are in employment.

Eric Appleby of Alcohol Concern told a recent TUC conference that about a quarter of workplace accidents involve workers who have been drinking and that up to 14 million working days a year are lost due to alcohol. He also revealed that drink and drug abuse costs employers an estimated pounds 3 billion a year.

Forensic Science Services (FSS), a government agency specialising in drug testing, has found that one in 10 British workers regularly test positive for illegal substances. Surprisingly, these include the over- 60s and senior executives. Even more dramatic figures were published this week in a survey by the Institute of Personnel and Development (IPD), showing that up to 18 per cent of the workforce may be taking drugs at any one time - three per cent up on the 1996 findings.

The obvious solution seems to be random drug testing. But Barry Warne, the head of employment at the law firm Irwin Mitchell, warns that employers "have no right to compel an employee to take a test in the absence of an express provision in the contract of employment". Mary Stacey, a partner at Thompsons, which also advises a number of trade unions, points out: "It is a civil assault and a criminal offence to take a sample from an employee without that person's permission."

Michael Ford, a barrister specialising in labour law and civil liberties, agrees that "in theory, if an employer tests someone for drugs without their consent, that is an assault". But he adds that, in practice, employees have no real legal protection. "The employer either makes sure there is a clause in the contract allowing him to do it, or if there is no clause and the employee refuses, he makes it a disciplinary offence which would end in the sack."

But with the enactment last week of the Human Rights Act there may now be new avenues of complaint open to employees who object to testing. However, such measures will not come into force until the year 2000. The Act implements the European Convention on Human Rights within domestic legislation guaranteeing, among other things, rights to privacy. John Wadham, the director of the civil liberties organisation Liberty, believes that random drug testing violates these rights, and that "employers should only be able to test employees under carefully defined circumstances - for example, in safety- sensitive posts".

Obvious examples would be people driving or operating machinery. But the law already makes provisions in these circumstances as under the Transport and Works Act 1992, it is a criminal offence for workers such as drivers or signallers to be under the influence of alcohol and drugs on duty, and the police can carry out tests if there is a suspicion that the operator is "unfit to work". Employers are also guilty of an offence if employees are found under the influence, unless they can prove they have exercised "due diligence" in ensuring workers' competence.

It is this position, says Jimmy Knapp, the general secretary of the RMT union, which, "in the employers' view, requires them to test for drugs and alcohol". There is also a requirement under the 1994 Safety Critical Work Regulations for employers to ensure that railway staff are physically fit. The RMT union has no objection to random drug testing, although it has had complaints about managers using the test as a disciplinary weapon, and picking on ethnic minorities.

And what about other workers? Liberty's John Wadham argues that if non- safety sensitive staff engage in "drug and alcohol consumption in leisure time [which] has no effect on performance, it is none of the employer's business". Mary Stacey of Thompsons agrees: "The issue is not whether their performance is affected. For instance, cannabis can stay in the body for up to 21 days, so a test showing a trace of cannabis is not a useful indicator of someone's performance today, if the person smoked it two weekends ago."

And there are other problems with drug testing. The FSS points out that there are a number of prescription drugs which can test positive for an illegal substance. And perfectly innocent substances can produce false results. Take the case of the London Underground worker who was randomly tested and found to have traces of a drug in his sample and was suspended from work. It subsequently turned out that the trace came from the poppy seeds on his lunchtime roll.

Employers, however, are not convinced. What concerns them is the increased use of illegal drugs at work having a perceived impact on the efficiency and profitability of their organisation. Of the 1800 respondents in the IPD survey, over 65 per cent said that they had noted a deterioration in work performance and relationships with both colleagues and clients of an individual believed to be abusing a substance. About 15 per cent said that they thought substance abuse had also led to workplace accidents.

It is hardly surprising, therefore, that there are roughly a million drugs tests carried out each year, and the number is growing. For instance, the International Petroleum Exchange, an energy futures and options market, introduced random voluntary testing last month, involving the use of sniffer dogs, as well as sweat and breath tests.

But Anna Bradley, the executive director of the Institute for the Study of Drug Dependence, queries the veracity of employers' perceptions. She says that in reality, "we know very little about the degree to which misuse impacts on health and safety and effectiveness at work". Bradley supports random drug testing in safety-critical areas, but is dubious about its usefulness in other circumstances. She welcomed the Government's decision last week to embark on a 10-year study on the misuse of drugs in the workplace.

In the meantime, employers will no doubt continue to make use of random drug tests, irrespective of their proven effectiveness. But as Keith Hellawell, the UK anti-drugs co-ordinator, pointed out in a recent speech, the point of the test "should not be about sacking people if they test positive for drugs, but about how to help them". He emphasised the need for a consensual approach, and encouraged private-sector businesses to invest in comprehensive "drugs solutions", in which random testing formed a smaller part of an overall policy, not least because it made sound business sense.