Layla investigates real life cases and brings the conclusions to HRzone, shedding light on important employment law issues. This month: if you force an employee to undergo a blood test for alcohol and dismiss them, can they appeal on grounds of data protection and human rights?

 
The case:
A manufacturing company employs a number of field service engineers who provide customer support in respect of the maintenance of the machinery that they produce for their customers. The field service engineers are provided with a company van which they use to travel to customer locations to carry out maintenance tasks. One of the field service engineers attends a meeting at the company’s headquarters and is suspected of being under the influence of alcohol. The company has a drug and alcohol testing policy in place, which the line manager relies on when he demands that the employee undergo an immediate blood test with the company doctor to establish whether or not he is under the influence. The employee reluctantly agrees. The results show that he is twice over the limit. The employee is subjected to disciplinary action, which results in his dismissal. The employee appeals against the decision claiming that it is unfair on the basis his Human Rights and Data Protection rights have been breached as a result of being required to undergo the test.

Is this correct?

Data Protection
There is unlikely to be any breach of the Data Protection Act 1998 as long as the company has clearly set out the circumstances in which such a test is to take place, the nature of the testing, what the acceptable levels of use are for a particular substance, the possible consequences of being tested and how the information will be used.
As long as the company’s drugs and alcohol policy sets all of the above out, this should be sufficient to make a finding that there has not been any breach of the employee’s rights under the Data Protection Act.

Justified cause
The collection of information through drug and alcohol testing is unlikely ever to be justified, unless it is for health and safety reasons. In circumstances where an employee is suspected of being drunk whilst at work and, as part of his or her duties, is required to drive, this is clearly a health and safety issue. The employer will be required and justified in taking the necessary action to deal with the issue. Certainly, testing an employee at the time where there is a reasonable suspicion that the employee is under the influence of drugs or alcohol is more likely to be justified than carrying out random testing on employees.

Breach of Human Rights
In order to ensure that there has not been any breach of the employee’s human rights, it is essential that prior to carrying out the test, the employee gave his consent. If such consent has been provided (which it has in this case), then the company can make a finding under the appeal process that there has not been any breach to the employee’s human rights.

It is worth noting, however, that the Employment Practices Data Protection Code does recommend that organisations consider alternatives to carrying out drug and alcohol testing which are not considered as intrusive. Examples given by the code include carrying out assisted performance tests, as well as using equipment that can be used to measure hand-eye coordination and response time. These can, in most cases, be as effective as a blood test, but yet avoid employees raising “breach of human rights” as a reason to refuse to undergo the blood test.

Dismissal due to being under the influence
Depending on the circumstances of the case, an employer could legitimately terminate an employee’s employment as a result of being under the influence of alcohol or drugs at work. If an employee was found to be under the influence as a first or second offence, and there was no detrimental effect on the company’s business as a result of the offence, dismissal may not be appropriate. It may instead be more reasonable for the employer to provide the employee with a written warning/final written warning, and at the same time provide the employee with support for treating his/her drug or alcohol related problem.

In the above case, whilst the employee has not appealed on grounds of reasonableness of the company’s decision overall, the company may wish to use the appeal process as an opportunity to reconsider its decision if indeed, this was the employee’s first offence, and there was conclusive evidence showing that he was not going to be in charge of any vehicle whilst under the influence.
 

Layla Bunni is a senior associate, specialising in employment law at Starr & Partners LLP. She advises on a wide range of both contentious and non-contentious employment issues.