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My employer wants to drug test me. I find this invasive. Can I refuse?

Drugs testing can only be carried out with employee consent. This should normally be given where your employer has grounds for testing you under a full contractual occupational health and safety policy. The policy should be set out in your contract of employment or in the company handbook. If an employer wants to carry out random drugs test then these must actually be random or otherwise it would be discriminatory.

If you refuse when your employer has good grounds for testing you under a proper occupational health and safety policy you may face disciplinary action, including being sacked. Employment tribunals are more likely to accept that an employer can require employees to undertake a random test. They will then consider whether the action taken by the employer against someone who refuses to submit falls within a reasonable range of responses.

There may be an argument that a requirement to submit to a drugs test will interfere with your right to privacy under Article 8 of the European Convention on Human Rights. This right is not absolute, but any interference must be lawful and proportionate.

The the Human Rights Act does not apply as between private individuals but only between individuals and public authorities. This means that you cannot rely directly on Article 8 HRA unless your employer is a public authority. However, as courts and tribunals are public authorities for the purpose of the HRA it is arguable that a Employment Tribunal must consider your Article 8 right when determining whether the drugs testing should have occurred and whether, if you have refused, the punishment was proportionate.

Further, even if your employer is a public authority, the right to privacy under Article 8 is not absolute, it is a qualified right. This means that it may be infringed in certain circumstances, such as where the infringement is necessary in a democratic society in the interests of public safety or for the protection of heath or morals. If the employer had evidence to show that the person being tested was working below par, an argument relying on Article 8 would be weakened. Basically, this means that if an employer can back up their request for a drug test by showing, for example, consistent late attendance, then an argument under Article 8 would be undermined.

On balance, if you refuse to take a test and are fired, you put yourself at risk of a tribunal finding that your employers acted reasonably. We would say that there are potential arguments under Article 8. If you were sacked for gross misconduct for refusing to have a test it could be seen as a disproportionate punishment without further evidence of misconduct. There could also be arguments over whether there was a breach of contract.

However, before refusing such a test and risking getting fired, Liberty would recommend contacting an employment solicitor for further advice. You can obtain details of solicitors in your area and their areas of expertise from the Community Legal Services helpline on 0845 608 1122. Further information about finding a solicitor is available here.
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