Intoxicant Testing in the Workplace 2023

Irish people joint-fourth highest consumers of cocaine globally, says UN – this is a recent Irish Times headline arising from the Global Report on Cocaine 2023 from the United Nations Office on Drugs and Crime (UNODC) – see Irish Times article by Conor Gallagher on 19^th March, 2023 here.

Drugs and alcohol in the workplace are not a new problem. However, our RDJ LLP Employment Team has noted a significant increase, over the past number of months, in queries from our clients around managing this problem. Presumably, the UNODC report referred to above goes some way to explaining this significant increase in queries.

We therefore agreed that it is timely to review the employment law and HR issues arising and to give practical business advice on how to manage and navigate this area.

We will start with the current legal position in Ireland on drug and alcohol testing in the workplace.

Legal Background

The Safety, Health and Welfare at Work Act 2005 (“the Act”), at section 13, sets out for the first time that an employee must ensure that he or she is not under the influence of an intoxicant to the extent that she or he is in such a state as to endanger his or her own safety, health or welfare or that of others. “Intoxicant” is defined in the Act as “alcohol and drugs and any combination of drugs or of drugs and alcohol”. This definition encompasses both legal and illegal substances, it includes prescribed drugs and over the counter medications.

The Act also sets out that, if reasonably required by his or her employer, an employee shall, while at work, submit to any appropriate, reasonable, and proportionate tests for intoxicants by, or under the supervision of, a registered medical practitioner who is a competent person, as may be prescribed. Importantly, however, this section was to be the subject of Regulations to give it full effect, but these Regulations were never implemented and show no sign of being put in place in the near future. Therefore, this section of the Act, dealing with intoxicant testing, has never been commenced.

Consequently, from a legal perspective, there is no statutory requirement for employees to undergo testing for intoxicants in the workplace and there is no statutory requirement for employers to test employees for intoxicants in the workplace. However, equally, there is no statutory prohibition on drug and alcohol testing in the workplace and therefore where an employer believes this is a workplace issue which needs to be addressed, there is nothing to stop an employer from introducing a policy around intoxicant testing in the workplace.

Employer’s Health & Safety Obligations

An employer’s duties under the Act are set out principally in Section 8 of the Act. This requires employers to ensure, so far as it is reasonably practicable, the safety, health, and welfare at work of all employees. Sections 19 and 20 go on to require employers to identify hazards in the workplace and to be in possession of a written risk assessment and to draw up a safety statement – if intoxicants could be a hazard in the workplace, then the safety statement should take account of this.

When Is Intoxicant Testing Appropriate?

Notwithstanding that the statutory framework for intoxicant testing has not been put in place, employers may carry out drug and alcohol testing where it is provided for in:

(a) an employee’s contract of employment.

(b) any policy on intoxicants which the organisation may have in place that builds in appropriate consent; or

(c) with the express consent of the employee.

Consent is key to ensuring that employers can drug and alcohol test employees. It can be set out in the employees’ contracts, or in a policy, that the employee consents to undergo drug and alcohol tests if required by the Company. You should note that an employee can refuse to submit to a specific test and withdraw that consent however the employer could then potentially take disciplinary action for the refusal.

A message repeatedly being sent by the Irish Courts is that a legally defensible drug and alcohol testing procedure can only exist in circumstances where genuine consultation has taken place between the employee representatives and the employer company. Thus, a dismissal in respect of a test failure could be challenged on foot of a lack of consent in the first instance and a lack of consultation regarding the policy in the second instance.

Testing must be reasonable and proportionate and reflect the individual needs of the organisation, underpinned by identified areas within your risk assessment policy and safety statement. The informed consent of the employee is central to a legally defensible test. While the precise type of testing to be rolled out by a company is a matter to be discussed with the employer’s occupational health advisors or consultants, employers are advised to bear in mind that the least invasive method of testing possible is the recommended method. Drug testing should only be carried out where there is good cause (i.e., where the employee’s impairment is obvious) or where it is random and justified in a safety critical environment. However, even in a safety critical environment, random testing would need, at the very least, to be underpinned by a strong risk assessment carried out by the employer’s health and safety consultants and referred to in the employer’s health and safety statement. Random testing is open to legal challenge and difficult to defend unless all the factors outlined have been taken into consideration.

It is important to note that the Data Protection Acts also have an impact on this area, since information regarding an employee’s health will constitute special category data. Therefore, where employers are seeking to obtain, store and use information regarding drug and alcohol intoxication or testing, the issue of explicit consent again arises. An employer’s suite of data protection documentation should reflect the intention to record and process such information in the course of employment.

Caselaw

In 2008, an Irish solder obtained an injunction preventing his dismissal on the basis of having tested positive for drugs. Although the employee tested positive for drugs, the High Court found that the Department had not discharged its obligations in relation to rolling out a transparent and agreed drug and alcohol policy. It was held that testing was not done in a fair or proportionate manner. It was noted that the employer had failed to properly advise employees that random drug testing was an integral part of the drug and alcohol policy.

Fair procedures in relation to drug and alcohol testing were examined by the then Employment Appeals Tribunal (now the Workplace Relations Commission “WRC”) in 2006 in the case of Kennedy (Claimant) –v- Veolia Transport Ireland Limited.

The facts of this case were that the Claimant tram driver had been subject to written and verbal warnings for disciplinary matters. The Claimant had been tested positive during a random breath sampling of driving on a morning shift of the LUAS trains and the Claimant complained of a campaign of bullying and harassment, following the requirement that he attend for a urine sample test shortly thereafter. The Claimant refused to submit to the test and alleged sickness as an excuse.

In holding against the Claimant, the Employment Appeals Tribunal said that the breath sample was clear evidence that the Claimant was in excess of limits for driving a tram and it appeared he had wilfully set out to avoid the urine test. There was no evidence that his targeting was unfair as the drug and alcohol policy in place had been previously negotiated with the employees’ Trade Union under a collective agreement and his dismissal had not therefore been unfair.

In this case the Claimant also raised an issue about the randomness of his selection for testing. As a result of the employee’s objection to his selection for testing, the method of selecting candidates for future testing was changed by the employer.

The Claimant also claimed that he, along with some 60% of drivers, had never received a copy of the Respondent’s drug and alcohol policy and that, unlike the practice with other public transport operators, he was given no advice by the Respondent on how long it might take for alcohol levels in the body to fall.

It is interesting that the particular facts of this case persuaded the Tribunal to hold that the Complainant had deliberately sought to avoid testing and that he was guilty of gross misconduct under the terms of the company grievance and disciplinary policy. The Tribunal considered that Claimant’s argument that he was being singled out for unfair treatment and, in this regard, it also considered the randomness of the method of selecting candidates for breath testing. Whilst, following the objection of the Claimant’s Trade Union in this case, the Respondent changed the method of selecting candidates for future testing, there was, nonetheless, no evidence adduced to the Tribunal to substantiate the Claimant’s argument that he was unfairly targeted for the breath test. For all these reasons, the Tribunal found that the dismissal was not unfair and as a result the Complainant’s claim under the Unfair Dismissals Act failed.

Lessons from the Case Law

Legally, an employer’s defence in an unfair dismissal case involving testing for illegal substances is clearly undermined in circumstances where either:

1. No policy or code of practice in relation to drug and alcohol testing exists, or
2. A drug and alcohol policy exists but is not enforced or in the alternative is not transparent in its application. When drafting a defence, employers will need to show that the policy was drafted according to the hazards identified in the risk assessment policy and the safety statement was further rolled out following training on the policy by relevant competent persons and that the employee at all times proffered informed consent to testing.

An employer should never of course force an employee to undertake a test (which could give rise to an alleged assault). Most employers who have testing in place will outsource the testing to a third party, perhaps an occupational medical advisor, and there will, and indeed there should, be consent built in by that third party to each test an employee undertakes. If a refusal arises, the employer can build in provisions to policies and procedures regarding potential suspension, investigation and disciplinary sanctions that will allow an employer to address an incident in the absence of consent to the third party to undertake a test.

On this point, it is important to note that even where an individual employee tests positive for drugs (or refuses), a full and fair investigation must take place under the employer’s Disciplinary Procedure before sanctions can be applied.

The Health & Safety Authority have some helpful guidance available for employers (see here). However, they make the legal position clear that there are no statutory regulations requiring or supporting random testing and that it is essentially a matter of contract agreed between employer and employee. Thus, as with all contractual matters, the issue of consent and agreement arises.

Other Employment Law Issues to Consider

Intoxicants in the workplace can raise other employment law issues. For example, an allegation that intoxicant abuse is occurring in the workplace could amount to a protected disclosure and would have to be addressed accordingly. The most recent legislation in this area, the Protected Disclosures (Amendment) Act, 2022, sets out that nothing in the legislation obliges any person to accept and follow up on anonymous reports made but of course an employer may decide to do so.

Furthermore, alcohol and drug dependency are likely to be disabilities for the purposes of the Employment Equality legislation and so employers must carefully navigate this complex area of employment law to ensure that they do not fall foul of their obligations to reasonably accommodate employees. For example, in the 2017 case of Christopher Reddin (Claimant) v Irish Aviation Authority (Respondent) [2017] 28 ELR 216, the Labour Court stated as follows;

“The Court is of the view that generally speaking when dealing with an employee who has an alcohol dependency problem, employers should give such employees an opportunity to seek professional treatment before considering dismissal. However, each case must be judged on its merits. Factors such as risk to safety, the level of responsibility the employee has and contact with the public are taken into account when deciding whether or not the penalty of dismissal was within the range of reasonable responses an employer might take.

In that case, the employer successfully defended the employee’s claim and the Labour Court noted the following;

• Factors such as risk to safety, the level of responsibility the employee has and contact with the public are all factors in deciding whether a dismissal was reasonable and fair;
• As a general principle, employers should give an employee with an alcohol dependency problem an opportunity to seek professional treatment before considering dismissal;
• There was a policy in place on managing workplace intoxicants and this was supported by a protocol for random testing;
• The policy clearly stated that attending the workplace while under the influence of drugs and/or alcohol is gross misconduct and is subject to a sanction of summary dismissal;
• Therefore, it was reasonable and not unfair to dismiss the claimant.

Conclusion

Sadly, the issue of intoxicant use in the workplace seems to be something that is on the HR agenda again and employers do need to understand their options to address this issue. Our RDJ LLP Employment Team is happy to provide on-going assistance and support to help businesses navigate this area.