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Few could escape hearing about the legalise drugs (or banish the prohibition) campaign that is running in the media in conjunction with the Houses of Parliament publishing their report.

Regardless of the media furore drugs impacts society in a major way and I was astonished to read that “England and Wales has almost the lowest recorded level of drug use in the adult population since measurement began in 1996. It begs the question, who was asked and how?! Now to work matters.

Employers are probably already looking at their alcohol and drugs polices because of the forthcoming clause 27 of the Crime and Courts Bill (currently before the House of Lords).

That Bill introduces the new offence of ‘driving, or being in a charge of a motor vehicle, with concentrations of specified controlled substances (that is drugs to you and I) in excess of specified levels.’ This offence will sit alongside the current (and hard to enforce) offence of being unfit to drive while under the influence of drugs in the Road Traffic Act 1988.

The current trend from Government is for the Police to deal with offenders without going to court (so-called out of court disposals which account for between 40% and 60% of all criminal punishments in this country). This means that those convicted by the police (not just drug related offences) seldom reach the public magistrates courts. We also know that fear of disciplinary action means that many employees will often take steps to hide the conviction thereby making it hard for employers and insurance companies to establish which of their drivers is a risk to themselves and their colleagues. To mitigate this employers are encouraged to look at their polices and procedures to ensure that out of court disposals are included in the mix of duties an employee must notify their employer.

This begs the question, why is notifying an employer more important than perhaps disciplining for having a serious conviction?

The answer is important and simple. Employment Tribunals do not automatically consider all criminal convictions as suitable for dismissal (including short term prison sentences). However, breaches of policy (such as failure to report and notify) are more likely to be acceptable serious breaches of conduct. Needless to say, driving convictions that seriously frustrate the employment relationship remain actionable as do matter that breach the employment contract (gross misconduct).

Some employers I have spoken to rely on inspecting the driving license of company drivers, however to this I add a caution; offenders seldom surrender their licence to courts and the police. This means they retain their documents (whilst losing the right to drive)!

Another concern is that the new Clause will impact those taking drugs which had been legitimately prescribed, especially in the case of opiate painkillers, where long-term users who suffer chronic pain might in the fullness of time end up on quite high doses to offset the body’s habituation to the drug. This means that to avoid unfair dismissal claims or issues around disability, employers should consider the gathering evidence of medical prescription of drugs and that will necessarily mean looking at the impact of legitimate or medicinal drug use.

When looking at policies, remember that concerns remain as to the length of time that traces of a drug remain in the body and the way that drugs affect different people.

One more aspect to consider is the hiring of staff. Drug offences are covered by the Rehabilitation of Offenders Act which means that all (except exempted roles) can not demand full disclosure of spent criminal convictions. Most employers do not see drug use as a bar to employment (although some employers, such as MOD) expect the use to be prior to employment. Other employers should consider risk assessments before taking any action especially in areas such a drivers, hazardous work places (warehouses etc.).

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