Road Legal

Drugs, alcohol and breath tests

30 December 2006

General duties

Employers have a general duty under the Health and Safety at Work, etc Act 1974 section 2 to ensure, as far as is reasonably practicable, the health, safety and welfare of their employees.

The Management of Health and Safety at Work Regulations 1999 also create a duty for employers to assess the risk to health and safety of their employees.

Consequently, if an employer knowingly allows an employee who is under the influence of excess consumption of alcohol or under the influence of drug misuse to continue working and this places the employee or others at risk, the employer will have committed an offence.

The maximum penalty for a conviction under the Health and Safety at Work, etc Act 1974 section 2 is a fine of £20,000 in the magistrates' court, and under the Management of Health and Safety at Work Regulations 1999, a fine of £5,000. Convictions for more serious breaches heard in the crown court attract an unlimited fine.

Often forgotten, employees are also legally required to take reasonable care of themselves and others who could be affected by what they do under section 7 of the Health and Safety at Work, etc Act 1974.

Transport-specific duties

In the transport industry, there is additional legislation in place to control the misuse of alcohol and drugs.

The Road Traffic Act 1988 makes it a criminal offence for any person who, when driving or attempting to drive a motor vehicle on a road or other public place, to be unfit to drive through drink or drugs. An offence is also committed if a person unfit through drink or drugs is in charge of a motor vehicle in the same circumstances.

In relation to the misuse of drugs specifically, the Misuse of Drugs Act 1971 makes the production, supply and possession of controlled drugs unlawful, except in specified circumstances. If you knowingly permit the production or supply of any controlled drugs, the smoking of cannabis or certain other activities to take place on your premises, you could be committing an offence.

The penalties for offences under the Misuse of Drugs Act 1971 are varied and depend on the class of drugs involved and the type of offence committed.

Breath tests

Businesses, particularly those in safety-sensitive industries, may consider using screening and testing as a way of controlling alcohol problems and preventing risks to others. This is sometimes done as a reactive measure, as a result of an accident or incident where there is evidence of drinking, or it can be done proactively by testing the workforce either routinely or on a random basis. In appropriate circumstances testing may also be carried out as part of a selection process for job applicants.

Remember that the agreement of the workforce to the principle of screening and testing must be obtained. Screening and testing is only likely to be acceptable if it can be seen to be part of a company's occupational health policy and is clearly designed to prevent risk to others.

Police powers

In relation to those driving vehicles, during the course of work or not, there are also the more specific road traffic offences to be considered.

The police have virtually unrestricted powers to stop a moving vehicle, but they may only take a breath test if:

the vehicle has been involved in an accident;
the driver appears to have committed a moving traffic offence; or
a police officer has reason to suspect that a driver has been drinking.

Drivers who are above the legal limit may face individual prosecution. Penalties for drink-driving offences include fines, driving bans and even imprisonment.