Employers ObligationsEmployers 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 testingSection 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 workPolicies 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:
- There was a legitimate health and safety risk.
- The employee was aware of the policy on intoxicant testing.
- The testing was carried out in accordance with appropriate or predetermined standards.
- The sanction of dismissal is proportionate.
- The conduct of both the employer and employee was reasonable.
- Consider whether a blanket policy is reasonable and proportionate or whether the testing should only be carried out for safety critical roles.
- Ensure that contracts of employment contain a clause providing for such testing.
- Agree an appropriate intoxicant testing policy with employee representatives.
- Ensure that employees are aware of the policy.
- 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.
- Ensure that the sanction of dismissal is proportionate before any decision is made.
- 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.
Sign up to our email digest
Click to subscribe or manage your email preferences.