WHEN DRUG USE IS NOT A SACKING OFFENCE

If The Government Line On Cannabis Softens Employers May Have To Revise
Their Views

With the growing debate on the case for decriminalising cannabis, employers
and employees will have to be sensitive to any softening of government
policy. David Blunkett, the Home Secretary, has hinted that the Government
may consider the case for decriminalisation while Peter Lilley, a former
Conservative Cabinet member, has called for cannabis to be sold through
licensed outlets.

Martin Palmer. a senior employment associate with the international law
firm Allen & Overy, believes employment tribunals will subtly shift their
stance accordingly. 'I think tribunals will act consistently with the way
the criminal law develops and with the softening line being taken in some
police areas. While I do not think this will mean tribunals will adopt an
overtly liberal approach to cannabis use by employees, I think they will
now take a highly questioning view of whether an individual's use of
cannabis really amounts to grounds for dismissal.

'In the recent employment tribunal case of Wilson v David Lloyd Leisure
Centre, Robert Wilson successfully challenged the fairness of his dismissal
after he was found with cannabis in the car park. The tribunal agreed that
the centre had a right to be concerned about the impact of drugs on the
health club but said it had unfairly dismissed him.

'It is probably the first time that someone has argued in an employment
tribunal in connection with a substance abuse termination that his right to
a private life under Article 8 of the Human Rights Act has been violated. I
think this case is significant because employees who, for example, refuse
to take part in their company's drug testing programmes and suffer some
form of detriment - dismissal or lack of promotion - are likely to use
similar arguments.'

This will mean that the way employers deal with drug-taking by recruits or
employees is no longer cut and dried.

'Some organisations like the Army still have an iron rule that drug taking
results in instant dismissal but other employers increasingly see drugs and
alcohol abuse as a medical issue rather than a conduct issue that should
lead to dismissal,' says Palmer. 'However, I do not think you will see
employers softening their line that drugs are drugs. Clients I encounter
view cannabis as a class A drug. But I think they will have to be sensitive
to changes in society.'

A survey by Allen & Overy's employment, pensions and incentives department
of 100 client companies, from big plcs to small businesses and charities,
found a third had policies allowing testing in the workplace.

Palmer believes it is important that testing is backed up by a substance
abuse policy, otherwise it could become an exercise in fear. 'The key is
having a fair and reasonable policy, which does not need to include
testing. The aim is to make it extremely difficult for someone who then
infringes the policy to allege that their subsequent dismissal is unfair,'
he says.

Employers using pre-employment screening would not fall foul of the Human
Rights Act, Palmer believes, because all they are doing is asking people to
confirm whether or not they are using an illicit substance or have an
alcohol problem. 'Article 8 doesn't allow you to argue that, prior to
becoming an employee, the refusal to give you a job because you have tested
positive is a breach of your right to privacy. Human Rights Act breaches
have to be tagged to claims for unfair or wrongful dismissal. Since you are
being tested before being given a job, there are no grounds upon which you
can argue your right to privacy has been violated.'

When BP introduced pre-employment screening for drugs for manual jobs in
Glasgow, 50 per cent failed the tests. Now candidates know that they will
be tested, fewer go for the jobs and the failure rate has dropped to 1 per
cent.

For Lucy Wright, BP's regional medical director, testing was secondary to
having a policy that encouraged employees to admit to a problem. 'It is
then dealt with in strict confidence. We usually enter into a written
agreement which says we will give them paid time off to attend courses and
counselling, while they agree to stay clean for at least two years.

'The number who have done that runs into tens and so far we haven't had
anyone failing to stay the course. When one man who had been through a
treatment programme for alcohol went off the rails again after seven years,
having always been a conscientious worker, we supported him again.'

In the legal world few firms have substance abuse policies, according to
Barry Pritchard, co-ordinator of Solcare, set up four years ago to help
solicitors with problems caused by drugs, alcohol, stress or depression.

'The number of solicitors calling us about drugs is virtually non-existent,
probably because they are worried about jeopardising their practising
certificates, even though we are not obliged to report them to the Law
Society. However, we hear from treatment centres that they are dealing with
more and more lawyers with drug problems.'

He believes that the key is treatment. 'The Solicitors Disciplinary
Tribunal is more compassionate than five or ten years ago and if you have
undergone treatment, it can help to mitigate the penalty.'