Law guide: Workplace

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Drug testing and employee monitoring

Drug testing and employee monitoring

Drug testing and employee monitoring

There are limits on what an employer can do to check on an employee's activities. Employers also need consent from staff for drug testing in the workplace.

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 can interfere with work efficiency.

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

Drug testing and your rights

Your employer may decide to test you for drugs. To do this, however, they need your consent. This should normally be given where your employer has grounds for testing you under a full contractual occupational health and safety policy.

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

Searching staff is a sensitive matter and your employer should have a written policy on this. Searches should respect privacy (e.g. 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.

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 (e.g. in your contract or company handbook). If you're 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 aren't allowed at all. Examples of surveillance can range from looking at which websites you have visited (e.g. 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 a legal reason for your employer to do it. Your employer should carry out an assessment of its effects before allowing its use.

Resolving a dispute

If you're unhappy with being tested for drugs or monitored at work, check your data protection privacy notice and any 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, make a complaint using your employer's grievance procedure.

If your employer doesn't have a clear written right to undertake testing for drugs or monitoring at work, you might be able to resign and claim unfair 'constructive' dismissal for breach of the implied term of trust and confidence. However, constructive dismissal can be difficult to prove, so it's important to get advice from a specialist lawyer or other professional. 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.

For more information, see our 'Workplace disputes' section.

Where to get help

For England, Wales and Scotland, the Advisory, Conciliation and Arbitration Service (Acas) offers free, confidential and impartial advice on all employment rights issues.

For Northern Ireland, the Labour Relations Agency (LRA) offers free, confidential and impartial advice on all employment rights issues.

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