Some employees will be asked to take regular or random drug tests by their employers. The reason given for this is normally health and safety, so you are more likely to be tested for drugs if your job involves safety-critical work such as driving, operating machinery or looking after vulnerable people. If your employer has decided to conduct random tests on employees, the tests should be genuinely random.
Drug testing can be very complicated and different methods of testing can be used by employers. For further information on the types of tests that may be carried out in your workplace, please contact Release’s specialist drugs team or email.
Agreement to be tested
Employers can only drug test if there is a drug testing policy that the employee is aware of and agrees to. This may be in your contract or staff handbook, both of which you should check to see if your employer can make you have a drug test. Sometimes drug testing policies are introduced after you have been working somewhere for a while – in this case you will have to accept this separately or agree to a change to your contract.
You can say no to any suggested change in your contract and the employer cannot force you to accept it. This might be a problem if you are on a fixed term contract as when it comes to renewal the employer will want you to sign a contract on the new terms.
Refusing to be tested
If you have not signed up to a drug testing policy you can refuse to be tested and your employer is not allowed to take any action against you. However, you should be aware that refusal may make your employer suspicious of your reasons for saying no.
If you have taken drugs and are concerned about the possible results of a drugs test, then please contact Release’s specialist drugs team.
Failing a drug test
Depending on your company’s policy, failing a drug test could lead to disciplinary action or you being dismissed. If your company has a zero tolerance policy to drugs, just the positive test could be seen as ‘gross misconduct' and you could be dismissed immediately or suspended while there is an investigation. This is most likely if your job is safety-critical such as driving or operating machinery.
Some companies have a condition in the contract that employees should not be under the influence of drugs at work. In this case, a positive drug test on its own will not be enough evidence that you were under the influence.
You should immediately seek specialist advice from an employment solicitor if you have failed a drug test. If you are dismissed from your job you must first challenge this through your employer’s internal procedures. If your employer doesn’t change the decision you may want to appeal to an employment tribunal.
Funding legal action
Unfortunately recent changes in the law have removed employment disputes from the scope of legal aid, and it is now only possible to obtain free advice and representation where issues of discrimination are raised. People who use drugs are not automatically protected from discrimination, but some firms may be able to offer a free initial interview or funding on a conditional fee arrangement (commonly known as ‘no win, no fee’). If you are a member of a trade union, you should also check if you are able to get free representation through them.
Further information and advice
ACAS: For free, independent and confidential advice on issues relating to employment law: 08457 474747
The Law Society: Search for a local employment solicitor: