When it comes to testing staff for substances that are likely to affect their ability to carry out their duties safely, it is good practice to have random testing procedures in place. We offer a testing service using up to date testing equipment fully approved by the Home Office. All tests are carried out by our own accredited certified tester.
Here is our advice
Employers have a general duty under the Health and Safety at Work, etc Act 1974 (HSWA) to ensure, as far as is reasonably practicable, the health, safety and welfare of employees. If an employer knowingly allows an employee under the influence of drugs or excess alcohol to continue working, and this places the employee or others at risk, they could be prosecuted. Similarly, the HSWA requires employees to take reasonable care of themselves and others who could be affected by what they do.
The Management of Health and Safety Regulations 1999 state that employers must carry out risk assessments for all significant activities of their employees and for those affected by their work activities (ie the public and their customers).
The Corporate Manslaughter and Corporate Homicide Act came into force on 6 April 2008 and could be used against employers who fail to take reasonable steps to ensure that their employees are fit to carry out their duties, particularly with regard to public safety.
The Misuse of Drugs Act 1971 covers nearly all drugs with misuse and/or dependence liability. The Act makes the production, supply and possession of these controlled drugs unlawful except in certain specified circumstances. If an employer knowingly permits the production or supply of any controlled drugs and the smoking of cannabis or certain other activities to take place on their premises, they could be committing an offence.
Drug and alcohol testing should be carried out on employees carrying out jobs in which impairment due to drugs or alcohol could have disastrous effects for the individual, colleagues, members of the public and the environment, eg drivers and mechanics operating workshop machinery.
The Transport and Works Act 1992 makes it a criminal offence for certain workers to be unfit through drink and/or drugs while working on railways, tramways and other guided transport systems. The operators of the transport system would also be guilty of an offence unless they had shown all due diligence in trying to prevent such an offence being committed. The Road Traffic Act 1988 states that any person who, when driving or attempting to drive a motor vehicle on a road or other public place or when in charge of a motor vehicle on a road or other public place, is unfit to drive through drink or drugs is guilty of an offence.
The Safe Operator’s Guide explains the advice from DVSA and the Traffic Commissioners to operators, and states: “We recommend that you introduce random alcohol and drugs testing and develop such a policy in consultation with the workforce/trade union. When setting your policy for alcohol testing you should decide whether to use the UK legal limit or the lower limit considered safe in most European countries. Drivers who start work early in the day are particularly at risk of having excess alcohol left in their system from the night before.”
The Traffic Commissioners may require operators to submit written evidence that they have effective drugs and alcohol policies in place.
Drug testing should only be introduced following proper consultation with staff and their representatives and should be even-handed. The Health and Safety Executive (HSE) recommends, in INDG 240, that for alcohol screening, “in addition to changes to the contract of employment, you should obtain the written consent of the individual for each test”. The employer needs to demonstrate that testing for drugs and/or alcohol is necessary to combat risk and is limited to those employees that need to be tested to deal with a specific risk. The employer must obtain informed consent from an employee before carrying out a drug test.
An employer could be liable to prosecution under the Equality Act 2010 for targeting drug testing at a particular group or for implementing drug testing in a discriminatory way. Selection for testing must be genuinely random.
The evidence for a link between drug or alcohol use and accidents is quite conclusive and alcohol testing is relatively straightforward and speedy to administer, with the time taken to carry out a breath test being measured in seconds.
Therefore, alcohol testing with a breathalyser causes minimal disruption to transport operators, although it can be more difficult to carry out with remote drivers who do not normally report to a fixed depot location, although Alco-locks can overcome such issues.
Drug testing is more complex and a relatively lengthy procedure, taking around 20 minutes per test. This can make it difficult to carry out testing when drivers report for duty without causing disruption to schedules. Although up to 20% of drivers involved in fatal accidents have drugs in their bodies (both legal and illicit) other factors have often been linked to these accidents, such as impairment through alcohol.
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