Addressing illicit substance use by staff

A curious case in the ‘Sport of Kings’ which saw a horse test positive for cocaine highlighted the problems employers can face with suspected drug use by employees.

A top horse racing trainer has reportedly been disqualified from racing for one year, with the penalty suspended for 12 months, after a filly tested positive for a metabolite of cocaine following a race last year. [1] cited 2.9.24

The source of the positive for the Class A drug remains a mystery, but the British Horseracing Authority attached no blame to the trainer.

A disciplinary panel heard an employee at the trainer’s yard admitted to using cocaine on two occasions in 2024, but neither was at or around the time of the race that led to the positive test.

It is reported that random drug testing is now likely to become an imminent reality for staff at the racing stables [2] cited 2.9.24

Drug taking by employees can create a range of problems for employers, which can be harmful to both the working environment and business operation.

There is an obvious health and safety risk. Any member of staff under the influence of drugs may have impaired judgment and reaction times. This is especially critical in safety-sensitive roles as it increases the risk of accidents and serious injury.

Employers have a legal duty to ensure the health, safety, and welfare of their employees under the Health and Safety at Work Act 1974. [3] cited 2.9.24

Most disciplinary policies will usually list any type of illegal drug-related activity as an act of gross misconduct, which can lead to dismissal.

A study listed the professions with the highest rate of addiction and substance misuse and it included hospitality, doctors and health care workers, arts and entertainment, legal workers, construction, police officers and people in the military [4]  cited 2.9.24

A Ministry of Defence response to a Freedom of Information request for information on drug use by soldiers in 2020/21 highlighted the scale of the issue.

The total number of soldiers who failed a compulsory drug test in that period was 270, with the Royal Logistics Core having the highest number of positive tests with 43 [5] cited 2.9.24

The figures show the leading substance was cocaine, which was detected in 214 of the tests.

The prevalence of adult drug use in society in general does mean it is an issue that will affect many employees, with the potential to impact on their employers.

The Crime Survey for England and Wales, covering the year ending March 2023, found that approximately 9.5 per cent of people aged 16 to 59 years (around 3.1 million people) reported using a drug in the last 12 months. Drug use was higher among younger people, with 17.6 per cent of those aged 16 to 24 years reporting any drug use. [6] cited 2.9.24

While the level of illicit substance use appears not to have increased in recent years, the levels are higher compared to a decade ago.

What can be considered relaxed modern attitudes to recreational drug use, does mean employers need to carefully consider its potential to have an impact on the workplace.

But balancing the need to maintain a safe and productive working environment with the need to respect the privacy and rights of employees, can be challenging.

Here we look at what employers should do about employee drug use, either outside or inside the workplace, and how to handle cases if drug use is discovered.

Employee drug use in private life

Employers need to be careful not to unduly intrude on what any employee does in their personal life, as it is their own business.

It does, however, become an issue if it impacts on work, the ability of the individual to perform their required duties of if it brings the business into disrepute.

For example, if drug use results in repeated absences from work, poor punctuality or performance, then it is reasonable to address such matters. The key factor is the impact of the drug-taking rather than the use itself.

Many employers now have a policy that covers drug use. Such a policy should make clear what is expected in terms of employee conduct, both inside and outside of the workplace, and detail what will happen if the use of drugs does impact on work.

Drug use at work

Most employers will take a zero-tolerance approach to drug-taking at work. Any instances  should be dealt with quickly and firmly.

Although illegal drug use on company premises or while on duty should not be allowed, any occurrences will still need to be dealt with carefully and fairly.

Any subsequent disciplinary process, which could result in disciplinary action up to an including dismissal, should be conducted in line with company policy and the ACAS Code of Practice.

Many employers now have procedures in place for drug testing, but it is a sensitive issue and it does have to be handled with great care.

Government advice on drug testing at work includes [7] cited 2.9.24

Employers have to have consent if they want to test for drugs. Usually this is when they have a full contractual health and safety policy, which should be in the contract or staff handbook.

Employers should:

• limit testing to employees that need to be tested
• ensure the tests are random
• not single out particular employees for testing unless this is justified by the nature of their jobs

Where drug testing is in place, it is vital that managers and supervisors are fully trained on how to recognise the signs of drug use. Where a manager believes a member of staff is under the influence, they should follow any procedure in place, which could include removing the employee from any safety-sensitive tasks and requesting a drug test.

If employee drug use is suspected or confirmed

Finding out and establishing an employee’s drug use presents a challenge for an employer. Dealing with it requires a careful and considerate approach and doing so can involve:

• Investigating and avoid jumping to conclusions. Gather all of the facts and carry out a thorough and fair investigation, which should include speaking to the employee to understand the context.

Follow any policy that is in place to deal with the issue, or if there is no specific policy, and some form of misconduct is involved, the disciplinary policy.

Keep the matter confidential and ensure it is dealt with in a balanced and reasonable manner.

• If drug testing is in place, ask the employee to take a test.

It is important to remember that if a test result is positive, it does not prove the employee is under the influence of drugs at that time and unfit to work. It confirms drug use as it detects traces of the chemicals.

If drug testing is not in place, reasonably observe the employee’s behaviour and speak to them privately, but handle the conversation with sensitivity and without making accusations and offer support.

Where testing is not in place it is always advisable to seek expert advice before speaking to an employee about suspected drug use.

• Be fair and supportive if drug use is confirmed or it is established there is a substance abuse problem. The employee should be given any information about available support services e.g. counselling or employee assistance programme. The individual should be given encouragement to seek help if they are struggling with substance misuse.

• If a breach of any company policy has occurred or the employee is unable to suitably perform their duties, then disciplinary action may be necessary.

Dismissal may be a reasonable outcome in some circumstances, but any action taken should be appropriate to the situation.

Finally

Managing employee drug use can be complex and challenging for any employer and it is essential to handle such situations with fairness and compassion.

Putting in place clear and effective policies and judging each case on its merits can help to ensure any challenges regarding drug use are effectively dealt with, while providing any necessary support for an employee’s wellbeing.