Random Drug Testing At Work

[jackieandwayne]

I need some help for a nephew today. He has been employed for 3 years almost with the same firm. He has never had a day off sick, let them down, or been in any trouble whatsoever.

 

His firm (A) are currently sub-contracting to another larger firm of civil engineers (b). A is his employer.

 

Today reps from B arrived on site unannounced, and selected three men for a random drug test. Nephew was told if he refused he would be kicked off the site (this would mean the loss of a days pay) and if he took it and failed he would be off all their sites forever. Nephew is hard up at the moment, so felt co-erced into signing their form and providing a sample.

 

Now, sometimes nephew smokes pot. He doesn't even smoke ciggies or drink, this is occasional if one of his friends turns up, or maybe if he is out with mates at the weekend. Never, ever if he has to drive anywhere, and most certainly never at work. I may not approve, but its his life and if I chuff 40 fags a day, what can i say to him about what he does? Plus he's 32 so a tad old for me to start lecturing him.

 

So, of course his test has come back positive for cannabis. Firm B forced him off site and he had to sit in his van for to wait for boss of firm A to sort this out. Firm A Boss arrived, very annoyed, ordered nephew and colleague to another nearby site where Company B have no dealings, work continued. 2 hours later firm A boss rings him up and has suspended him without pay and will see him on Monday.

 

In nephews contract with FIRM A there is no mention of being required to submit to drug testing whatsoever. There is no mention of the subject whatsoever. And of course nephew has no contract with Firm B at all. (Although I realise that boss A does have a contract with Firm B by way of sub-contracting.)

 

I looked on ACAS and they suggest that nephew did not have to take this test at all, as it is not in his contract of employment. None of the men throughout the company have been made aware that this may happen, so it really was completely out of the blue. ACAS suggest that after consultation between either the staff and the boss of A or the company health and safety rep and staff of A, that only then should a new term be entered into the contract. It also states that employers cannot control an employees private life, and that a tribunal may find in favour of unfair dismissal if presented with such a scenario where recreational drugs have been used out of working hours.

 

So, am I right in thinking that nephew stands a good chance of fighting back if he needs to after Monday's meeting? My instinct is that his main argument would be that he has never at anytime agreed to be drug tested, has never been warned this might happen, has no contract with the company doing the testing (B), and felt co-erced into doing it because they threatened him with being kicked off site and losing money. (He was given no explanation or opportunity to check on his rights in this matter, he was told it was compulsory and company B policy). As well as what I read on the ACAS site.

 

Any advice or pointers I could give him? By the way, I know the tests are meant to be completely random, and we don't believe there is anything wrong there, because of who was selected, one lad came from a completely different company again - and when his boss arrived he was sacked on the spot.

 

Over to you. I'd like to help him if i can, I don;t really approve of wacky backy, but I feel very strongly that something is wrong here. Anyway, each to his own.

 

Thanks.

[jackieandwayne]

BUMP. Nephew's misfortune has gone round company like wild fire - about 60 employees. Many of his friends are ringing him to confirm that they have never been made aware of any drug policy what so ever, it is not in their contracts and no-one has ever seen a company handbook.

 

I'm afraid chaps, we now have a large group of working guys wantring advice on this. Some of them, rightly or wrongly, its not for me to judge, are now worried sick. The owner of Firm A has admitted he is going to have to take legal advice on this, and nephew's site manager is already onto ACAS over it, so will have found the same information I have.

 

The owner of firm A is known for employing people worthy of a second chance, lots of them are just young lads, well, we all know what we used to get up to when were that age, so a fair proportion of them probablyare worried. Its fair to say they are a rough old workforce, but they have to work hard for the minimum wage, and have little prospect of another job if they lose this one, and they know it. He's the sort who makes unlawful deductions out of wages, won;t pay paternity pay without an arguement, but these guys put up with it to keep working. The boss is ok, despite all this. He is very worried himself about this but I suspect for two reasons, loss of contracts with Firm B and possible ET's.

 

But he can sort himself out, he has enough money safe aside anyway, this is a little help for these guys, if anyone can help. I hope my nephew doesn;t see this post, because I am going to say he works for this firm because he's not the brightest one in the box, and its preferable to factory work for him. He's a lovely guy, just not academic!

[mariefab]

He could print out some of the information from the links below to take to the meeting.

You'll need to scroll down in a couple of them

 

Drug Testing False Positives - Drug Test False positive with marijuana and other drugs

 

Blood and Urine Drug Testing for Cannabinoids

 

ICO - The Employment Practices Code

[hallowitch]

this happened to my son (he is 34) works in construction

all the lads got a letter telling them they had to go for drugs test he thought he would be OK he only smoked it occasionally when he had weekend off 1 weekend off in 4

he was suspended on pay for 10/12 wks then went for another test which was OK

now I'm not 100% sure about this (was so mad with him i wouldn't listen to him when he was talking to me about it ) but i think if you have worked with company for a long time they might not be able to sack him but have to send him for drug counselling

I don't know if this was his firms policy or if it is for all firms

I know he looked into it so i will phone him tomorrow and ask him

[jackieandwayne]

Oh thanks you two, I am getting a headache from all these lads and men ringing the nephew and then him ringing me to update me! Its caused a right stir because not even the foremen and contract managers are aware of any drug policies.

 

I'll have a good read, and in the meantime if anyone else can help that would be great.

[jackieandwayne]

Oooh mariefab, look what i found on the ICO link - they are talking about testing as well as medical records.

 

In general employers should only collect health information where this is necessary for the protection of health and safety, to prevent discrimination on the grounds of disability, to satisfy other legal obligations or if each worker affected has given his or her explicit consent.

If consent is to be relied on, it must be freely given. That means a worker must be able to say ‘no’ without penalty and must be able to withdraw consent once given. Blanket consent obtained at the outset of employment cannot always be relied on.

Consent should not be confined to the testing itself, it should also cover the subsequent recording, use and disclosure of the test results.

 

I'll print that lot out - thank you.

[Sali]

Well, I worked at a company site, but as an employee of another company, and the company site's management gave everyone, including those of us who were not their direct employees, notice that there would be random drug/alcohol testing.

 

There was no requirement to change our contract of employment. We didn't sign any agreement up front. We didn't like it, or didn't turn up for a random test when called, then the company site didn't want us working there.

 

Quite frankly, I wasn't particularly bothered at the time (I've since moved on) and the only day my random test came up, I was on holiday. Part of me thinks that it could even be a good thing in jobs where the health and safety of others may be compromised by a person under the influence of drink or drugs.

 

However, this kind of thing will crop up more and more, so it would be interesting to hear exactly what an employee's rights are.