Drugs and alcohol testing justifiable?

The Information Commissioner has produced updated guidance for small businesses following the publication of the fourth and final part of the Employment Practices Data Protection Code concerning information about workers' health.

The guidance states that whenever drugs or alcohol testing is used to enforce a business' rules and standards, firms should make sure that such rules and standards are clearly set out to workers.

It suggests that firms use the "least intrusive forms of testing" and that they inform workers about what drugs they are being tested for. Testing should also be based on "reliable scientific evidence" of the effect of particular substances on workers.

Last year the Centre for Occupational and Health Psychology at Cardiff University produced a fascinating research report for the Health and Safety Executive concerning the impact of illegal drug use by workers.

It highlighted the effects of different substances on workplace and driving performance, and concluded that further research was needed, particularly into drugs other than cannabis. According to the researchers around one third of UK workers under the age of 30 had used drugs over the previous 12 months.

Random testing

The Information Commissioner's latest guidance says random testing for drugs and alcohol among workers, when justifiable, should be "genuinely random".

"It is unfair and deceptive to lead workers to believe that testing is being carried out randomly to obtain information if, in fact, other criteria are being used," said the Information Commissioner.

Also, firms should not collect personal information by testing all workers, whether randomly or not, if only workers engaged in a particular activity pose a risk. "Workers in different jobs will pose different safety risks, therefore the random testing of all workers will rarely be justified," said the guidance.

As well as drugs and alcohol testing, the final part of the code covers sickness and injury records, occupational health schemes, information from medical examination and testing and genetic testing.

David Smith, assistant Information Commissioner, said: "Information about people's health is very sensitive and requires effective protection. This part of the code addresses issues of real, practical relevance to many employers and those they employ.

"We believe we have set out a common sense approach in a user friendly manner. Employers may have alternative ways of meeting their legal requirements under the Data Protection Act when handling information about workers health, but if they do nothing to apply the principles behind the code they risk breaking the law."

Legal benchmark

The Employment Practices Data Protection Code is based around the Data Protection Act (1998), which places a responsibility on any organisation to process personal data that it holds in a fair and proper way.

The general position outlined in part 4 of the code concerning information on workers' health is that employers are entitled to obtain, record and store information about an employee's health only if one of the Act's "sensitive data conditions" is met.

These include, for example, when the information is required in order for the employer to comply with health and safety legislation, to prevent discrimination on the grounds of disability, or if the employee has given their 'explicit' consent. Employees are entitled to see any of this information held by an employer.

The code only provides guidance and is not, in itself, legally binding. However it will be used by the Information Commissioner as a benchmark against which to judge possible breaches of the Act, and would be taken into account at employment tribunals for example.

The Information Commissioner is an independent official appointed by the Crown to oversee the Data Protection Act 1998 and the Freedom of Information Act 2000.