Buddy says: Employers are right to be cautious in these circumstances.  The extent to which employers can require employees to undertake random alcohol (or drug) testing is limited, even where there is a contractual right to test the employee in their contract of employment. 

An unreasonable request to take a test will result in a breach of the implied duty of mutual trust and confidence, which could lead to the employee bringing a claim of constructive dismissal.  In the absence of factors indicating that the employee is using, or is affected by alcohol (or drugs) at work, an employer will have to ensure it can justify any testing it wishes to carry out. 

Employer Information: Consideration should be given to the introduction of a drug and alcohol policy.  Any such policy should set out the aims and purposes of the policy and who is covered by this.  The policy should set out the testing process clearly and provide advice as to what would happen in the event that an employee’s test is found to be positive. Any information obtained about the employee’s health as part of the testing process should always be treated sensitively and with strict confidence.  

Before taking disciplinary action, employers should always ensure that they follow their policies and procedures together with the statutory disciplinary procedures.  If an employee claims to be suffering from an addiction, it would be good practice to treat the employee as suffering from an illness and an employer should take reasonable steps to determine the employee’s chances of recovery and allow a reasonable time for this.

It is important to be aware that although alcohol and drug addictions are excluded from the Disability Discrimination Act 1995 (“the Act”), an employee who suffers ill-health (for example depression) as a result of their addiction may well be deemed to have a disability for the purposes of the Act.