Using drug testing to avoid redundancy pay

Workplace drug testing has become commonplace for employees in safety sensitive roles, and the courts have sanctioned testing regimes for such roles in a number of cases.

This report from the Guardian suggests that in the UK, employers are increasingly using drug testing to get rid of staff without having to make redundancy payouts, as a way of cutting costs during the recession.

Release, a drug charity, apparently reported a four-fold increase in calls to its drugs team about workplace testing in the first three months of 2009, compared with the same period last year.

The report says that in many cases callers have been getting in touch in a state of distress, having been tested for the first time after years in the same job. Often a programme of voluntary redundancies was announced, followed by workplace medicals for the remaining staff, including a drug test.

As in New Zealand, drug testing in the UK has been routine for many years in safety critical jobs, such as driving and machine operation. However, the report suggests Release is getting many calls from sectors they had comparatively few dealings with before, such as office work, banking and commerce.

In New Zealand (and in the UK), dismissing an employee in a role that is not safety-sensitive merely because they have smoked a joint on the weekend would be unjustified in just about every conceivable case, particularly if it was done merely to get out of paying redundancy compensation.

As this blog by Sam Leith points out, using this as a way to get rid of someone has consequences beyond the immediately obvious ones. It converts what would otherwise have been a redundancy into a (much more serious) dismissal for taking drugs, thus making it harder for the employee to secure new work, in what is already a difficult market. Many will be dismissed without notice, as being under the influence of drugs at work is serious misconduct. That in turn makes people more likely to default on rent or mortgage payments.

Concateno, the company mentioned in the article that carries out most of the workplace drug testing in the UK, responded to the claims by saying that using testing to cut redundancy costs would be difficult for a number of reasons: employers have to take a thorough, considered approach to implementing a workplace test programme, consulting not only with their staff, but also with HR, risk managers, occupational health and other professionals, to ensure they have a robust policy that is fit for purpose. The need for this sort of approach applies equally in New Zealand.

I'm not aware of any cases involving drug testing regimes being abused in this way in New Zealand, although there does seem to be more cases involving drug testing these days. Here is one I covered in February, and one from December (and in January the Authority upheld the dismissal of an employee found in possession of cannabis in a carpark search).

Has anyone come across any cases of employers abusing drug testing in this way?

 

Greg Cain

Greg Cain is an employment lawyer at Minter Ellison Rudd Watts.