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.