Failed drug test

[thejamman]

11 TUPE transfered employees have been drug tested and one has failed. My question is, should they have been tested as new employees or are they regarded as just transferred employees and therefore not even tested in the first place?

[Sidewinder]

The fact is that there has to be an agreement that the employee may be drug tested. What was the policy of the old employer? What is the policy of the new employer? Does this differ significantly? If the old employer had no drug testing policy, then has the new employer circulated anything which might add this possibility to the contract?

 

What is the nature of the job, and what has happened (or will happen) to the employee concerned?

[elpulpo]

Aye.

[thejamman]

Thanks for the quick reply guys.

The business is mass transport but his role is not safety critical. The previous company did not have a drug and alcohol policy...the transferred into firm has 'just cause' and 'random every three months' but no pre-employment test clause. They all had a pre-test as part of a medical prior to starting post TUPE. One failed for marijuana...but whist waiting for the results he had a work related accident and had to go on the sick for two weeks...he was allowed to return to work prior to the second test at 28 days......(should he not have been suspended as the drugs would still have been in his system?).

Unfortunately he also failed the second test but the levels were not disclosed and may have been on the cusp of passing for all we know. His contract has been terminated. Any pointers to a possible appeal strategy would be greatly appreciated.

[thejamman]

The question I am asking is, did the company have the right to carry out a pre-emploment medical if he was only transferring under TUPE. They were not strictly employing a new starter, after all they do carry over all previous years of employment? It is continuous employment surely?

 

Also, if there is no mention of a pre-employment drug test in the drug and alcohol policy, can they include it as part of the medical?

Edited April 7, 2011 by thejamman

[Sidewinder]

If the employees had not been notified of a drug testing policy and had not given consent for this to take place, then all of the contractual terms of the previous employer must be considered to have been in force. Therefore if there was no testing policy, nor implied provision for this in the employee's contract, then the new employer has acted unlawfully. You do mention that a medical examination was involved - was this a contractual requirement with the old firm, and could testing have been permissible within the small print of that? Was each employee given notice of the medical in which permission might have been given for drug or alcohol testing. Such a test would be considered 'reasonable' (subject to certain conditions and safeguards) in a job which involves driving, so you need to be certain that the test was carried out with no prior notice or consent to have grounds for appeal. If the first test was failed, what was the employee told? Was he told that a second test would be carried out? How long between tests? Who carried out the tests and were samples retained for secondary analysis in the event of a positive result (A&B tests as used in sports testing?

 

As to teh question of whether a medical would be lawful in itself - that depends on the reason for the medical. It may be a requirement for sickness benefit or life insurance purposes. It may be a Health & Safety policy requirement, but the key is whether the employees were just taken to one side with no notice, or were warned that the medical would be taking place and given the opportunity to object.

 

Your colleague should certainly already be preparing an appeal and seeking legal advice on this. His primary reason for appeal would be the legality of the drug test in that there is no contractual provision for such a test. He may also have grounds to look at how the test was conducted, how the results were assessed and possibly the continuity of evidence. As I say this needs proper, qualified advice and full disclosure of facts.

 

There is information here:-

 

http://www.direct.gov.uk/en/Employment/HealthAndSafetyAtWork/DG_10026594

http://www.findlaw.co.uk/law/employment/problems_at_work/500163.html