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Ben Jones
Ben Jones, Solicitor
Category: UK Employment Law
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Experience:  Expert in UK Employment Law
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Hello, i run a small construction company of 11 employees.

Resolved Question:

Hello, i run a small construction company of 11 employees. I'm intending to carry out a random drugs test as evidence of drug taking has come to light. The problem i have is that my contract of employment doesn't cover this issue as never been a problem up to now. Am i still within my rights to do these tests and on providing a positive test does the law still stand and actions to be taken.
Submitted: 1 year ago.
Category: UK Employment Law
Expert:  Ben Jones replied 1 year ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.

Ben Jones :

Are these intended to be open or covert tests?

Customer:

open ben

Ben Jones :

whilst there is nothing stopping you from proposing to undertake drug tests in the workplace, if the employees refuse to undergo these tests, you cannot force them to, especially as there is nothing in your contract saying they have to agree to such tests. A drugs test is an invasion f privacy and can only be done with the person's consent. Usually, if they had unreasonably refused to undergo such a test when you had the right to ask them to under contract, you could treat this as misconduct, especially if there was evidence that they had taken drugs. However, in the absence of a contractual clause on drug tests all you can do is go by whatever other evidence you have and follow a fair procedure, in terms of conducting a reasonable investigation and then holding a formal disciplinary, remembering that you would need at least some evidence to take a formal decision against them

Customer:

if i ask them for their consent and they give it, on providing a possitive result can i them issue them with a verbal or written warning or will this still mean nothing due to it not being in the contract.

Ben Jones :

if they consent and you have the results you can take disciplinary action if necessary, but you have to consider what impact this has on their work - just because someone is taking drugs in their own time and it does not affect the business in any way, does not mean you can discipline them, especially if there is nothing regarding taking drugs outside of work in their contract

Customer:

The problem i have ben is that the companies we sub contract to have a zero drugs tolerance due too the nature off our works.

Ben Jones :

you can use that as a reason, it would be more of an issue if you wanted to discipline them for work they did with you, but if you subcontract and have rules that you need to adhere to from the client's point of view then these can be taken into account when taking action, especially if a client has instructed you to remove someone from site as a result

Customer:

I am led to believe that in some cases their drug taking is starting to affect their work, and is it right that they are coming to work after taking drugs the night before, i need as a company to find a way to stamp it out before it affects my company reputation.

Ben Jones :

if it is affecting their work then you do not need a contractual policy to take action but you would need some evidence to take formal action . I suggest you try and introduce a new policy in their contracts so try to get their agreement first

Customer:

Thanks Ben youve been very helpful.

Ben Jones :

You are most welcome. Please take a second to leave a positive rating for the advice I have provided as that is an important part of our process. Thank you and all the best

Ben Jones, Solicitor
Satisfied Customers: 39000
Experience: Expert in UK Employment Law
Ben Jones and 2 other UK Employment Law Specialists are ready to help you

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Ben Jones
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Expert in UK Employment Law