MP highlights case where work place drug testing can go wrong

THURROCK MP JACKIE Doyle Price chose the issue of work place drug testing as the subject of her maiden adjournment debate.

“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?

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