Employment e-Brief – Finger print alcohol testing

A recent news item featured a new device which uses a near-infrared light to measure blood alcohol content from someone’s fingerprint.  A red light is a fail and a green light is a pass and alcohol levels can be set by the employer. The website for the device states “Changing Workforce Behaviour Toward Alcohol – Imagine being able to test for alcohol in the workplace every day”. How realistic is this prospect?

When the Government researched the impact of alcohol in 2004, it was estimated that loss of productivity and absenteeism at work cost the economy £14 million.  But can employers really test all employees every day to check their blood alcohol levels? Is this really about to happen?

ALCOHOL TESTING

In order to test employees for alcohol employers must:

1. ensure that there is no breach of the Data Protection Act 1998 (DPA);
2. ensure that there is no breach of the Human Rights Act 1998 (HRA); and
3. ensure that they have employee consent and/or a contractual right to carry out the testing.

DATA PROTECTION ISSUES

Health data is sensitive data under the DPA and therefore, in order to obtain and process alcohol testing data, the information must be processed for one of the purposes specified in the Act.  One of the few circumstances in which alcohol testing is likely to be justified is to ensure the health and safety of employees, which is a legal obligation for all employers.

As a result, testing a lorry driver or machine operative after an incident giving rise to suspicion that they are under the influence of alcohol, or random testing within these high risk roles, should cause no data protection issues. However, random testing of employees who work in an office environment is likely to be in breach of the DPA.

HUMAN RIGHTS ISSUES

The HRA only directly applies to public bodies, however as Tribunals are public bodies, they must take employee human rights into account if a claim is brought.  It has been claimed that dismissing an employee who tested positive for unacceptable levels of alcohol would be in breach of the right to respect for private and family life.  The approach of Tribunals is likely to be that a dismissal for alcohol consumption can be fair and not in breach of an employee’s human rights if:

it impacts on the employee’s duties (e.g. by raising a health and safety issue) or adversely affects the employer’s reputation; and

a clear policy is in place which warns employees that being under the influence of alcohol at work is classed as gross misconduct which could result in summary dismissal.

CONSENT OR A CONTRACTUAL RIGHT

Employers cannot force employees to take an alcohol test against their wishes, but if they refuse, it may be possible to take disciplinary action against that employee for failure to follow a reasonable instruction.  Whether that dismissal is fair depends on the circumstances, including:

• whether there is a contractual obligation on the employee to agree to alcohol testing;
• whether failure to take an alcohol test is regarded as an act of gross misconduct under the disciplinary procedure; and
• the implications of the employee being under the influence of alcohol, including a consideration of the nature of their role and any health and safety implications

It follows then that the claims in the media that millions of workers could face routine alcohol testing every day, is simply not going to happen. Whilst the new device may be quicker and easier to use, it does not widen the circumstances in which alcohol testing can be lawfully used.

To discuss this e-Brief in more detail please contact Bryony Goldspink employment Solicitor on 0113 227 0307 or at bryony.goldspink@gordonsllp.com.