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Workplace Drug Testing

Volume 529: debated on Monday 13 June 2011

Motion made, and Question proposed, That this House do now adjourn.—(Angela Watkinson.)

I am pleased to have the opportunity to address the House on workplace drug testing. As the emphasis on health and safety in the workplace is heightening, the incidence of drug and alcohol testing in the workplace is increasing, too. Such testing is welcomed and supported by both employers and employees, for very good reasons, as it is in everyone’s interest that the workplace is a safe environment.

Trade unions recognise that any one employee working unsafely poses a risk to other employees and they have been happy and willing to agree drug and alcohol policies with their employers. That means that workplace drug and alcohol testing is becoming increasingly prevalent, which is great from a health and safety point of view and, through deterrence alone, could be anticipated to lead to fewer industrial accidents. I have concerns, however, from a human rights perspective. These tests can act as judge and jury and, as a consequence, we need to ensure that the regulatory regime governing such tests and practices is adequate and that both employers and employees understand their rights and responsibilities with regard to such tests, so that employees are not treated unfairly.

I want to illustrate the issues with reference to my constituent, Mr Joe Kelly, who faced dismissal from his post following 31 years of employment with the same employer after he received a positive test for heroin. My constituent knew that the test was erroneous and mounted a successful challenge that saw him reinstated. As he says, however, he was prepared to take the risk and engage legal representation, but many other employees facing similar circumstances might not have that luxury. It is to protect the rights of employees that I am bringing these issues to the attention of the House.

I want to highlight to the Minister the key areas that I think pose a risk and to ask for his reflections on what the Government can do to strengthen understanding on the part of employers and employees through their trade unions. I am not sure this matter necessarily needs more regulation, but in drawing up an appropriate drug and alcohol policy, the employer and the trade union will need to satisfy themselves that they and their contractors have appropriate processes to deal with collecting and testing samples.

There are essentially three areas of risk that we need to get right. The first is the integrity of the collection process. This is the fundamental aspect that should be tightened. There must be a clear and documented chain of custody, so that samples are correctly identified and handled to prevent them from being mixed up, contaminated or tampered with. Without a chain of custody, there is no proof that the sample belongs to the subject.

In the case of Mr Kelly, the chain of custody could not be proved and the collection process was poor. He had been more than happy to comply with the demands for a random drug test, but in supplying his sample, he was very unhappy with the procedure. The process was not explained, consents were not properly sought, his samples were not sealed in his presence, and he had concerns about the cleanliness of the process. Overall, he felt that the collectors were more concerned with speed than with accuracy and that there was serious risk of cross-contamination.

In this case the sample was saliva and, as is customary, two samples were collected so that in the event of a challenge, a repeat test could be run. Given that the samples were not sealed in the presence of my constituent, he could not be satisfied that the sample which had tested positive belonged to him, nor could he sure that the B sample belonged to him. In the event the B sample did clear Mr Kelly, but given his understandable lack of confidence in the process, he took his own measures and paid to have a hair test, which again cleared him.

Firms engaged in testing sign up to standards overseen by the United Kingdom Accreditation Service. In this example, the firm was signed up to UKAS standards only for the lab. I venture to suggest that employers should engage only with firms that are signed up to appropriate standards throughout the collection and testing processes.

The second area of risk is the testing process. In Mr Kelly’s case the sample tested which read positive for heroin was very small. The testing company’s own methodology stated that an insufficient sample would represent a failure in the chain of custody, but testing took place in any case. It is also suggested that the testing instrument was not properly calibrated to analyse such a small sample. Moreover, a multiplier was applied to the reading, which meant that the results were not reliable. In the absence of the multiplier, the test was in fact negative.

So when Mr Kelly obtained the lab report, it illustrated that the company had not complied with its own standards. I am very surprised that the company delivering the testing service met UKAS standards, in view of these deficiencies. That is why employers and their trade unions may not wish to leave it just to UKAS to establish quality and integrity of processes. I advise that they take steps to satisfy themselves that processes are sufficiently robust.

Finally, the human resources policies of the employer should be appropriate. Joe Kelly was confident that he was innocent, but his employer was adamant that the test was cast-iron evidence of guilt. I have no doubt that the employer acted in good faith, but alarm bells should have sounded. This was a 59-year-old man in a management position, with 31 years service. The test indicated serious heroin abuse over a prolonged period. One does not have to be a rocket scientist to appreciate that if this man had been a regular heroin abuser, it would not have taken a random drug test to highlight the fact. Physical and behavioural symptoms would have highlighted abuse. There needs to be some sensitivity on the part of employers about how positive tests are handled, with an appropriate appeal process if the employee or his line management feels that the test is not accurate.

Employers should be sensitive to the impact on people’s reputations. That this episode happened to my constituent at the end of a long career as a respected member of staff has left a bitter taste. I am sure no employer would want to accuse long-serving members of staff unfairly and, if alerted to the risks, that they would wish to take steps to ensure that their processes were sufficiently robust. I suggest, therefore, that in the event of a contested sample, the employer must be satisfied that they can make available the chain of custody records to validate drug tests, the lab report for the screening test, the full report of the medical officer and a method statement for sample collection. If any of these is unsatisfactory, the test should be deemed invalid. In this case the lab failed to provide chain of custody documentation, failed to calibrate the instrument effectively, and failed to explain the lack of volume in the sample or justify the use of a multiplier. If the company doing the testing understood that it would have to supply this information to employers as a matter of routine in the event of a contested claim, I venture to suggest that this would act as a discipline to ensure that appropriate standards are maintained.

Ultimately, this case has been a learning experience for the employer and the union. They will happily concede that it took this unhappy incident for them to understand the risks that they were asking their employees to take with this policy. They have strengthened their procedures accordingly. However, the lessons of this case need to be understood more widely so that employers and unions do not sign up to procedures that are deficient. Otherwise, we may find other employees dismissed on the basis of samples that are not theirs or because they have been improperly tested. Such an event would also blight the employee’s employment prospects, and in the interests of natural justice, we as law-makers should satisfy ourselves that we have done what we can to defend the rights of employees.

Does the Minister consider that there should be more guidance in this area, particularly given that drug and alcohol testing is becoming increasingly common? I do not believe that we need more regulation, but we need more understanding of the risks and more dissemination of best practice. Therefore, what might the Government do to highlight best practice and foster dialogue with employers and trade unions to heighten awareness so that the rights of employees are protected?

I thank my hon. Friend the Member for Thurrock (Jackie Doyle-Price) for raising the matter and for the way she has done so. I hope that I will be able to give her some satisfaction on the points she wants the Government to address. Before doing so, it is important that I state for the record the legislative background to drug testing in the workplace.

Employers have a general duty under the Health and Safety at Work etc. Act 1974 to ensure, as far as is reasonably practicable, the health, safety and welfare at work of their employees. They also have a duty under the Management of Health and Safety at Work Regulations 1999 to assess risks to the health and safety of their employees. If they knowingly allow an employee under the influence of drugs to continue working and his or her behaviour places themselves or others at risk, the employers could be prosecuted. Their employees are also required to take reasonable care of themselves and others who could be affected by what they do at work.

The Transport and Works Act 1992 made it a criminal offence for certain workers to be unfit through drugs and/or drink while working on railways, tramways and other guided transport systems. The operators of those transport systems would also be guilty of an offence unless they had shown all due diligence in trying to prevent such an offence from being committed. The Road Traffic Act 1988 states that any person who, when driving or attempting to drive a motor vehicle on a road or other public place, is unfit to drive through drink or drugs shall be guilty of an offence. The principal legislation for controlling the misuse of drugs is, of course, the Misuse of Drugs Act 1971. Nearly all drugs with misuse and/or dependence liability are covered by it.

Therefore, there is a legislative framework that makes it clear that employers have a duty to ensure that they look after the health and safety of their workers. There are several codes of practice to assist employers in this, most notably a free booklet published by the Health and Safety Executive, “Drug Misuse at Work”, which mentions a number of related matters, including drug screening, which is what concerns my hon. Friend.

My hon. Friend will know that I cannot comment on the individual case, but the main thrust of her speech related to how drug testing is carried out. My Department is responsible for the sole Government-recognised UK national accreditation body, the United Kingdom Accreditation Service. UKAS operates accreditation as a public authority activity, as required by European legislation. It has a strong international reputation for the quality and rigour of its accreditation assessments and is itself regularly assessed by its peers.

UKAS accredits laboratories when required to do so by legislation or when voluntarily requested to do so by a laboratory. Accreditation is an assessment and attestation that a laboratory is competent to undertake specified conformity assessments. International standards exist to cover the collection of samples, and UKAS is happy to accredit against those standards. My Department works closely with UKAS and has full confidence in its work.

My hon. Friend raised the specific case of her constituent, as well as making a wider point. I am happy to ask UKAS to work alongside the Health and Safety Executive to improve the HSE’s guidance on drug misuse at work and to expand the guidance coverage to include the complete drugs testing life cycle from the collection of a sample to its testing. I think that that was the point that she was seeking to make, particularly when she talked about the integrity of the collection process and the chain of custody. I hope that my officials will talk to UKAS and the HSE to ensure that the guidance can be improved in the way she mentioned. I agree that this is not an area in which new regulation is needed. Having listened to the case of my hon. Friend’s constituent, I believe that we can deal with the concerns, which she rightly raised, through Government guidance. I hope that she will be satisfied with this response, but if, on reflection, she has any further questions, I would be very happy to deal with them personally if she writes to me.

Question put and agreed to.

House adjourned.