Drug testing and employee monitoring

There are limits to 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 interferes with how much work is done.

Because of the safety risks, 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 a legal responsibility to look after your health and safety at work as far as is reasonably possible. They must assess any possible risks and 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
  • Health and safety representatives

Drug testing and your rights

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

The policy should be set out in your contract of employment or in the company handbook. Your employer should limit testing to the employees that need to be tested to deal with the risk.

If your employer wants to carry out random tests of these employees, bear in mind that the tests should be genuinely random. It's potentially discriminatory to single out particular employees for testing unless this is justified by the nature of their jobs.

Searching employees is a sensitive matter and your employer is recommended to have a written policy on this. Searches should respect privacy, be carried out by a member of the same sex, for example, 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 This could include being sacked.

Email and CCTV monitoring

You should expect some monitoring at work by your employer, as 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, in your contract or company handbook, for example. If you’re under surveillance, this should be made clear to you. 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 are not allowed at all.

Examples of surveillance can range from looking at which websites you have visited, to see if pornography has been downloaded, for example, 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, which means you can’t be monitored everywhere, and example of this would be in the toilet.

If your employer doesn’t respect this they could be in breach of the Data Protection Act. Under this Act any monitoring must normally be open and there should be good reasons for your employer or others 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 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, your organisation should have a grievance procedure and the details should be in your company handbook, contract of employment or written statement. If the policy isn't contractual, you might be able to resign and claim unfair 'constructive' dismissal for breach of the implied term of trust and confidence, but this will depend on the facts and can be difficult to prove.

You might also have a claim for discrimination or a criminal claim of assault or false imprisonment if a search or drug test is  handled badly.

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