Civil Fraud Quarterly Round-Up: Q1 2021
A drug and alcohol testing provider recently carried out random workplace drug tests and pre-employment drug tests on behalf of 856 UK employers (with drug misuse policies in place). According to Concateno, the tests showed that at least one in 30 employees has illegal drugs in their system at any point in time, which equates to nearly one million people across the UK workforce. The tests showed that from 2007 to 2011 there has been a 43 per cent increase in UK employees testing positive for drug use. Workers aged under 25 were found to have the highest drug positivity rate, however, workers aged 25 to 34 were found to be most likely to test positive for Class A drugs such as cocaine, amphetamines and benzodiazepines.
It is an offence under the Misuse of Drugs Act 1971 for any person to knowingly permit the production, supply or use of controlled substances on their premises, except in specified circumstances, such as when the drugs have been prescribed by a doctor. Employers can therefore break the law if they knowingly allow employees to take part in drug-related activities on their premises.
Employers also have a general duty under the Health and Safety at Work Act 1974 to ensure, as far as is reasonably practicable, the health, safety and welfare at work of their employees. Drug users can pose health and safety risks to others, as well as themselves. Further, employers have a duty under the Management of Health and Safety at Work Regulations 1999, to assess the health and safety risks to their employees. Drug use may increase the risk of accidents and so employers need to be mindful that they are under an obligation to minimise the risk of harm to all employees.
Employers should also be aware of the additional costs of absenteeism and reduced productivity which can be associated with drug use.
In order to limit the level of drug use amongst employees, employers should adopt a substance misuse policy, in consultation with their staff, which sets out how the organisation expects employees to behave. The aim of the policy should be to ensure that drug misuse does not have a detrimental effect on work. The policy should encourage those with a drug problem to seek help and be clear that those who come forward will have the same rights to confidentiality and support as they would if they had any other medical or psychological condition. The policy should state that the general approach will be for the employer to support affected employees, rather than punish them, and that, as far as possible, drug misuse will be treated as a health issue rather than an immediate cause for dismissal or disciplinary action. For example, employers can offer an Employee Assistance programme with access to counselling sessions and support.
However, it will be necessary for employers to take disciplinary action under certain circumstances, which should be clearly set out under the policy. This may include the following circumstances:
• If help is refused and/or impaired performance continues;
• cases of gross misconduct; and
• cases of possession/dealing (these actions should be reported to the police immediately).
Employers may choose to adopt drug screening as part of their drug policy. However, screening is only likely to be acceptable if it can be seen to be part of an organisation’s occupational health policy and is clearly designed to prevent risks to the misuser and others. Employers should be aware that it is essential to obtain the agreement of the workforce to the practice of drug screening, before implementing it.
In conclusion, the reality of the situation is that drug abuse has become so common in the UK that all employers should ensure that they have the necessary policies and procedures in place to protect themselves and their employees.
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