As is well known, Employers have a clearly defined duty to ensure the safety of those affected by the work or actions of their organisation. Usually this extends to more obvious hazards such as machinery, falling objects, moving vehicles and trips and falls. But other issues may also be present, particularly in the area of employees who are under the influence of intoxicants which would have a serious effect of their performance, attitude and ability to perform their workplace tasks without endangering themselves or others.
Since September 2005 when the Safety, Health and Welfare at Work Act came into force, there was a section covering this topic, section 13 stated that
“Employees are under a duty not to be under the influence of an intoxicant to the extent that they endanger themselves or others”
But what do we mean by intoxicant? The act defines it as“alcohol and drugs and any combination of drugs and alcohol” this would extend to both illegal and prescription drugs.
So it seems pretty clear then? Well not quite, whilst it is obviously an issue which needs to be controlled and there is a clear duty on both employers and employees – there is a lack of guidance and limits. It was widely expected by those in Health and Safety Consultancy that the guidance would follow on a regulation to be enacted at a later stage. It seems now that there will be no workplace intoxicants regulations enacted any time soon and that this will leave many employers unsure of their requirement and any disciplinary actions open to challenges.
A workplace intoxicants policy should be part of the organisation’s safety statement and the risks associated with workplace intoxicants should be assessed in a similar manner to any other hazard in the workplace. With thorough and comprehensive policies and procedures you can have a system which guards against issues arising from inappropriate use of intoxicants and protects both employee’s from injury and employers from litigation.
There is no current legal requirement for employers to introduce workplace intoxicant testing; many companies have this in place, especially in ‘safety critical’ tasks. A recent case of a tram driver who screened positive for alcohol following an accident and was dismissed came through the Employment Appeals Tribunal and was upheld, the Tribunal agreeing that the company was within their rights to take the action they did. There have also been cases which have not been upheld, not due to the levels of intoxicant involved, but due to the strength of the policies and procedures which underpin the disciplinary process.
So whilst Employees do not have to consent to screening or testing under the Safety, Health and Welfare at Work Act 2005 and employers are not obliged to bring in testing, it can be part of a contract of employment . It may be introduced as part of ‘post-accident’ procedures, where all persons involved in an accident are tested or it could be a random test which occurs across the entire workforce. What is important is that the procedures should be clear, understood by all and deemed to be fair. All persons need to be made aware of the outcome of a positive test and what actions may be taken against them. The European Workplace Drug Testing Society legally defensible guidelines are a sound basis for drawing up guidelines on how to implement testing in the workplace.
In summary, any event or action which increases the risks associated with the work processes of any organisation need to be addressed. To that end employers and managers need to be aware of the risks posed and have a clear strategy to mitigate against them. We have a clear responsibility to protect people from the actions of those who may be under the influence of drugs or alcohol, including those persons risk to their own wellbeing. The nature of the work will dictate many aspects of the policy and the need to have in place strict testing and controls, but we all must ensure that we take all reasonable precautions to ensure safety in the workplace.
If you need assistance with developing a policy, amending your safety statement or just some advice on how to deal with a situation – call Peninsula on 01 855 50 50
