3. We believe that an employee was under the influence of alcohol during working hours however we were unable to prove this. What is the current position on breathalysing employees at work?

This is a common issue for employers particularly those in the transport and manufacturing industry where health and safety issues are critical to the proper running of the organisation. Employers Obligations Employers are obliged to provide a safe working environment in accordance with the provisions of the Safety Health and Welfare at Work Act 2005 (the “H@S Act”). The H@S Act also provides that employees must ensure that they are not under the influence of any intoxi... This is a common issue for employers particularly those in the transport and manufacturing industry where health and safety issues are critical to the proper running of the organisation.

Employers Obligations

Employers are obliged to provide a safe working environment in accordance with the provisions of the Safety Health and Welfare at Work Act 2005 (the “H&S Act”). The H&S Act also provides that employees must ensure that they are not under the influence of any intoxicant, to the extent that they would endanger their own health and safety at work or that of any other person. Effectively, this means that if an employer discovers that an employee is intoxicated to such an extent that they pose a health and safety risk to themselves and to others, they must take the requisite steps to prevent or diminish any risks including removing that employee from the workplace. Failure to remove the employee from the workplace in those circumstances is a breach of the H&S Act and may expose the organisation to liability. The Health Service Authority (HSA) has issued an Information Sheet on Intoxicants at Work which outlines in further detail an employer’s obligations in respect of alcohol use at work. A copy of the Information Sheet is available here.

Legal basis for alcohol testing

Section 13(1)(c) of the H&S Act allows for regulations to be made providing for intoxicant testing at work. However, no regulations have been made to date and until such time as the regulations are introduced, the section does not apply. As such, there is no statutory basis which allows an employer to insist that employees undergo tests at work for intoxicants. Therefore, it is only possible to require employees to undergo a test for intoxicants if it is provided for in a contract of employment or policy. Even then, the testing must be proportionate and reasonable.

Policies on intoxicant testing at work

Policies on intoxicant testing in work are common for safety critical roles. Blanket policies which require all employees to undergo alcohol testing are unlikely to be regarded as reasonable or proportionate and an employer may have a difficulty in enforcing such a blanket policy. In general, the policy should be grounded in a contractual term. In some employments, the policy may be the subject of agreement between the employer and employee representatives. The HSA's Information Sheet states that where testing is part of company policy or a term in an employee’s contract, the testing should be carried out in accordance with a recognised standard such as the European Laboratory Guidelines for Legally Defensible Workplace Drug Testing. These Guidelines set out strict parameters under which testing should take place. In identifying if intoxicant testing is proportionate and reasonable, a court is likely to consider whether:

1. There was a legitimate health and safety risk.
2. The employee was aware of the policy on intoxicant testing.
3. The testing was carried out in accordance with appropriate or predetermined standards.
4. The sanction of dismissal is proportionate.
5. The conduct of both the employer and employee was reasonable.

The issue was dealt with by the Labour Court in 2007 in the case of Alstom Ireland Limited v A Worker CD/07/413. This case highlights the difficulties that employers can face when seeking to enforce an intoxicant testing policy. In this case, a maintenance technician was summarily dismissed for an alleged breach of the company’s policy on drug testing in circumstances where he tested positive for a small quantity of drugs. The employer argued that the employee was employed in a safety-critical role and could therefore not be under the influence of any banned substances irrespective of whether the drug test only showed a residue of drugs in his system.  The employer further argued that it had a zero tolerance policy in regard to testing for intoxicants which had been agreed with the union as a part of a collective agreement. While the Labour Court stated in its decision that it supported the use of drug and alcohol testing in safety critical roles, it held in this particular case that the employee had been unfairly dismissed as there was some dispute as to whether the test result should have been classified as a positive or negative result given the small quantity of drugs involved. Expert evidence was called by each party but a consensus could not be reached between the experts. The Labour Court ultimately found that the employee should have been given the benefit of the doubt and ordered re-engagement. In the case of Trevor Kennedy v Veolia Transport Ireland UD 240/2006, a Luas driver who failed a random breathalyser test was dismissed following a disciplinary procedure.  The testing was conducted by a bio-scientist from an independent testing contractor. When the employee initially failed the breathalyser test, which was three times the limit for a safety critical employee, he refused to provide a confirmation urine test.  He stated that he did not give a urine test as his “stomach was in bits” and he went home as a result.  He claimed that the previous afternoon he had drank four pints with food and afterwards suffered from vomiting and diarrhoea during the night. He produced a sick certificate which stated that he was suffering from gastroenteritis. The Employment Appeals Tribunal found that although the employee had not received a copy of the company's drug and alcohol policy, it was "reasonable" that, following a positive breath sample, that the complainant should have allowed a urine test to be taken and in refusing to allow this he was in breach of company procedures. Therefore the claim for unfair dismissal failed. If your organisation is considering introducing alcohol or drug testing, you are advised to:

1. Consider whether a blanket policy is reasonable and proportionate or whether the testing should only be carried out for safety critical roles.
2. Ensure that contracts of employment contain a clause providing for such testing.
3. Agree an appropriate intoxicant testing policy with employee representatives.
4. Ensure that employees are aware of the policy.
5. Put in place adequate and independent testing procedures which comply with the European Laboratory Guidelines for Legally Defensible Workplace Drug Testing or other relevant industry standard.
6. Ensure that the sanction of dismissal is proportionate before any decision is made.
7. Consider whether the employee has any addiction which may be regarded as a disability for the purpose of the Employment Equality Acts before making any decision to dismiss.

This article first appeared as part of Legal-Island’s employment law update service. Find out more: www.legal-island.ie