A comprehensive history of workplace drug testing in the UK

Across the globe, drug testing is mandatory in many workplaces: a 2013 report from HireRight claimed that 78% of US employers have a drug and alcohol testing programme in place, with a Quest Diagnostics report from 2016 showing that positive drug tests in US workplaces have recently climbed to a ten-year high.

Here in the UK, employers are bound by a duty to protect the safety of their place of work under the Health and Safety at Work Act - including ensuring that employees do not work while under the influence - but drug and alcohol tests are not mandatory. Such testing is claimed to be on the rise but is still less frequent than in other countries.

A 2004 report published by the Health and Safety Executive showed an association between illegal drug use and cognitive failures at work - but none between drug use and workplace accidents. A 2011 report estimated that 17.3 million working days a year in the UK are lost through alcohol misuse.

So how have we got to where we are today?

The beginning

Section of 8 of the Misuse of Drugs Act of 1971 effectively opens the story of workplace drug testing in the UK. Under this Act, employers knowingly permitting drug use within the workplace could now be prosecuted.

As the first workplace drug testing kits began to be marketed in the 1980s, the UK saw a surge in drug use amongst young adults: between 15-20% stated that they had tried an illegal drug. This figure had risen to nearly half of all young adults by 1995.

The 2000s: Testing on the rise

Two decades after the first testing kits appeared in the UK, workplace drug and alcohol testing was still confined to a relatively small number of firms. A 2001 survey from the Chartered Institute of Personnel and Development (CIPD) showed that around 60% of the companies surveyed had formal drug and alcohol testing policies in place, but only 18% - mainly in safety-critical industries - had carried out drug or alcohol testing amongst employees.

The following year, the Chartered Management Institute (CMI) published a report entitled Drugs and Alcohol in the Workplace - Guidance for Managers. According to this report, while 55% of managers agreed that random alcohol and drug testing in the workplace would prove an effective deterrent, less than half had a drugs, alcohol or combined policy in force. Of those with a policy in place, just 13% stated that there was also an audit procedure in place, and 27% did not know what the policy involved.

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In 2004, the Independent Inquiry into Drug Testing at Work (IIDTW) reported 14% of employers using pre-employment testing and 16% using random testing - the figures higher for both the emergency services and the transport industry.

The report also showed that different organisations tested for different substances in different ways - and the ways in which positive tests were handled varied significantly from company to company. Most compellingly, it showed that managerial enthusiasm for workplace drug and alcohol testing was not matched by take-up.

Workplace drug testing today

Drug and alcohol testing has come on leaps and bounds in recent years, with improved methodologies, improved accuracy and an increase in usage. However, the law remains the same: workplace testing is not mandatory, but also not forbidden, providing tests are carried out in accordance with both employment contracts and human rights legislation.

In order to maintain high standards in legally defensible drug testing in the workplace, members of the European Workplace Drug Testing Society have produced a set of Guidelines on Workplace Drug Testing covering urine, oral fluid and hair samples. These guidelines take into account everything: collection, process and personnel, confirmation, and interpretation of results.

A legal minefield?

The increase in workplace drug and alcohol testing throws up legal challenges. Employers must ensure that they have clear and unambiguous drug policies in place, and that employees have consented to the form of testing they wish to employ.

While the Health and Safety at Work Act requires employers to maintain a safe and healthy working environment, other legislation - such as the Data Protection Act and the 1998 Human Rights Act - give workers a good level of protection if inadequate testing procedures are in place.

An example of why this is necessary can be found in the case of Cosgrove vs. Kuehne & Nagel Ltd. After an anonymous tip-off that Ms. Cosgrove had been using cannabis, a positive test led a disciplinary charge of being present at work under the influence of drugs, and she admitted smoking cannabis at a social event the previous Saturday. She was subsequently dismissed - an action which an employment tribunal found to be unfair. Here, the focus was on the positive test - a result of cannabis lingering in the body after it has been taken - and not on whether this affected her work.

In the case of Dyson vs. Asda Stores, a senior employee was dismissed - and the dismissal upheld at tribunal - after refusing to take a drug test after an anonymous tip-off, which turned out to be a case of false identity. The company explained to the employee that it knew he wasn’t the subject in question, but still asked him to take a drugs test to show that the matter had been investigated fully.

The employee refused, the testing was then made compulsory, and he refused again, before being dismissed. A tribunal upheld the dismissal, stating that a test was important in a dangerous working environment when such a tip-off had been made, and that senior management should be shown to uphold company policies.

But not all drug tests are born equal. In 2015, a Bristol bus driver won an employment tribunal, after being sacked by his employer for testing positive for cocaine in a saliva test. He believed that the traces showed after handling hundreds of pounds in cash, with 88% of bank notes said to carry traces of the drug. After paying for hair follicle testing through his GP, the results showed that he had not had any drugs in his system for at least 90 days. “False positives” such as these can be more prevalent with oral testing, and hair testing can be used as a method of confirming or denying a history of use and validating positive test results from other testing methods, rather than simply looking at the here and now.  

But for those who do test positive, is dismissal the only answer, or would treatment be a more effective solution?

In 2001, personal possession of all drugs was decriminalised in Portugal, focusing on a more health-centred than disciplinary approach. Since then, drug use amongst the most susceptible age groups has decreased, rates of continuation of drug use have fallen, and usage levels are below the European average.

Certain companies have followed this approach: Vauxhall Motors see positive tests as a health rather than disciplinary issue when they have the commitment of the subject, offering support to employees to free them from drugs, which also helps Vauxhall to retain long-term employees.

Compared with other nations, UK take-up of workplace testing remains relatively low, but an increasing global trend towards such testing may well lead to rapid changes here in the UK. The United States has a reputation as a country with a litigious nature (as cases such as these show), and the UK is moving in the same direction, as the Dyson vs. Asda Stores example above shows. With no firm laws in place around drug testing, employers must ensure that things are done by the book to achieve their desired outcomes. The important thing is to ensure that when testing is done, it’s done right.