July 20, 2015

Drink, drugs and dismissals

It’s now more important than ever that employers ensure their drivers are fit to drive.

Most people are aware that there are specific blood alcohol limits for drivers prescribed by law. Many will know that the limit is 80 milligrams per 100 millilitres of blood.

But did you know that it is now only the limit in England and Wales? Scotland has a much stricter regime of 50 milligrams per 100 millilitres and Northern Ireland is considering a similar restriction.

Far fewer people appreciate that new legislation on drug driving in England and Wales was recently introduced. It’s now illegal to drive with illegal or legal drugs in your body if it impairs your driving. Again, the rules are different in Scotland and Northern Ireland.

If you employ people who drive for a living – or do so yourself – make sure you are familiar with the implications of the new drug driving regime. There’s a list of prescribed drugs that can impede your driving ability at www.gov.uk/drug-driving-law. Make sure your employees and their line managers are fully aware of the implications too.

Whether convicted of a drink or drug driving offence, the outcome is invariably a driving ban, possible imprisonment and subsequent increases in insurance premiums. You may feel you have no alternative other than dismissing the individual.

Is it appropriate to test employees?

Many businesses include contractual provisions requiring employees to attend work in a fit and appropriate state. Sometimes this includes provisions for random alcohol or drug testing.

Random testing needs to be a proportionate response to an established risk within your business. It must always be handled carefully.

Forcing an employee to take a test may be amount to assault. The testing equipment and process must also be robust. Utilising a self-test kit purchased off the internet is highly unlikely to be adequate. Getting it wrong can be damaging and expensive to your business.

There is no better example than the recent experience of First Bus. They dismissed a Bristol bus driver following a positive saliva test for cocaine.

A bus company would undoubtedly be able to show that requiring a test would be a proportionate response to an established risk. However, saliva tests are not particularly robust. Beyond this, the process they followed was flawed with factors that were not taken into consideration. For example, the driver had been counting his takings during his lunch break and, apparently, over 80% of circulating bank notes are tainted by illegal drugs.

He strenuously asserted he was not a drug user and paid for a more robust drug test personally. He brought this and medical evidence from his doctor to appeal.  The more robust hair test he had obtained identified there had been no cocaine in his body for the previous three months.

First Bus ignored this evidence along with his clean disciplinary record of over twenty years. He remained dismissed. When the matter came before the Employment Tribunal they were extremely disparaging about the lack of consideration given to the compelling evidence he had produced.

The tribunal described the company as having been “wholly uninterested” in fully exploring the issue. The Employment Tribunal awarded him £84,000. And the adverse media publicity made most of the national newspapers and the BBC.

If work your employees perform carries attendant risk or they drive on your behalf, now may be an opportune time to review the arrangements you have in place to deal with possible drug and alcohol impairment.

Need advice on this subject or another area of Employment Law. Why not contact us or download our Employment Law Guide?

By Mike Fitzsimmons

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