Although it’s still November, we’re now in the thick of Christmas party season. As the festive season raises the likelihood of employees attending work under the influence of alcohol, Victoria Duddles, an associate at Weightmans LLP, explores the viability of alcohol testing in the workplace.
The Alcohol Health Network has recently been promoting self awareness among employees in terms of their own drinking habits and has been working with employers to encourage them to promote a drink Audit questionnaire for their workforce.
However some employers may want to go further than this and actually implement their own alcohol testing within the work place. But are they able to do this?
Clearly if an employee is under the influence of alcohol at work, this is a serious concern for an employer, especially a manufacturer given all the health and safety risks associated with the industry.
Whilst an employer may be suspicious that an employee is under the influence, if there is no contractual right to do so, an employer cannot insist that the employee undergoes alcohol testing although the employee can be asked to voluntarily submit.
If the employee doesn’t agree to undergo a test this doesn’t prevent the employer dealing with the issue.
If all the evidence such as witness statements etc support the fact that the employee has come into work drunk the matter can still be dealt with as a conduct issue if there are reasonable grounds for believing the employee to be under the influence.
“As any information obtained from alcohol testing would constitute health information this comes within the definition of ‘sensitive personal data’.”
If an employer wants to carry out alcohol testing, it is much better if there is a contractual right to do so although it doesn’t necessarily make things straightforward.
An employee can still refuse to undergo the actual test and for that reason employers should also make it clear that an inference of misconduct may be drawn if an employee refuses to submit to a test.
Furthermore, as any information obtained from alcohol testing would constitute health information this comes within the definition of ‘sensitive personal data’ under the Data Protection Act.
As such, as well as getting the employees’ explicit consent to the processing of data, the employer needs to be able to justify its processing as being necessary to perform any rights or obligations imposed or conferred on it by law.
To ensure the health, safety and welfare of workers may be one such justification but one that may be easy to apply for employees operating machinery but harder for manufacturers to apply to admin staff whose job never requires them to go near the manufacturing operations.
Health and safety may be a similar justification should any employee argue that carrying out a test breaches their right to privacy under the Human Rights Act.
Even if an employer is undecided about whether to carry out any testing, it is sensible for employers to have a drugs and alcohol policy in place so that employees understand the organisation’s rules on drug and alcohol at work, but also how the organisation may assist employees who admit to having a dependency problem.
