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Want to drug test your employees? What you need to know first

By Claire Mansell - 10 Oct 2019

Employers are becoming increasingly aware of the risk that drug-taking poses to a workplace. However, employers should tread carefully when deciding to drug test employees. The employers in the recent case A v N learned this lesson the hard way.

On its face, the employers in A v N had a clear cut case to drug test their employee "A".  "A" was a farm hand and had recently started to act erratically and aggressively after she formed a relationship with another farm hand, "J". In addition, J had provided the employers with a written statement alleging that A was taking drugs.

The employers turned to the employment agreement, prepared by Federated Farmers, for guidance. The employment agreement confirmed that they had a zero tolerance policy towards drug use and allowed drug testing where there was reasonable cause to suspect an employee's fitness for work is affected by the consumption of alcohol or drugs. So far, so good. However, the employment agreement also stated that the testing would be carried out in accordance with the drug testing policy (which could be introduced at any time) or the policy of a drug testing agency. Unfortunately for the employer, they had not introduced a drug testing policy. At this point, things started to go down hill for the employer.

Having realised that they needed a drug policy before they could test A, they decided to impose one on her. Initially, they contacted Federated Farmers and purchased a copy of their standard drug testing policy. Due to copyright obligations, they were unable to copy this document and unwilling to buy another. Concerned that A would try to delay the drug testing in order to secure a negative result, the employer gave her a copy of the drug policy to read overnight. This gave A no opportunity to obtain legal advice on the proposed policy. At this point, A's lawyers stepped in and offered to have A tested by her own GP. The employer refused this offer and decided to abandon the Federated Farmers drug policy. A drug testing agency was instead invited on site to carry out the drug test without prior notice to A (or a copy of their drug testing policy being provided to her). A was informed that she would be disciplined if she did not consent to the drug test. She refused and was subsequently dismissed from her employment. A successfully challenged her dismissal on the basis that it was procedurally and substantively unjustified.

Ultimately, the employers in A v N were caught out because they hadn't taken the time to get their drug policy in order before it was needed. If the drug policy was in place before A was employed, or if it had been introduced using a fair and reasonable consultation process, then this situation may not have arisen.

Contact Claire Mansell if you want to know more about employment policies - prior to having to use them.


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