MY RIGHTS: Drug test one week = pass. week later, refuse to do... UK, England.

[tjeff]

Statistics can be weird. Try writing down the outcome of an imaginary coin toss 100 times as you imagine it, then try tossing an actual coin 100 times, and see how many runs of heads and tails you get which are longer than 8, 9 or even 10. Random can often look much less random than the pseudo random humans create.

I've read a case on this subject before and IIRC what is supposed to be random is the order in which employees are tested, and the timing, not the identity of the testee in any given test week. So it's possible that you might be tested in week 1 of the first 40 week cycle, and also in week 1 of the second 40 week cycle. It's random you got the first week both times. But twice in a period of 7 days is not, I think, justifiable. I think it's inconsistent with an employers obligation for fair dealing, and could be a breach of the implied term of trust and confidence, to subject an employee to repeat testing in that way

If there is no explicit term in his contract (or a term in the health/safety or disciplinary policy that meets the bar for incorporation as a term of his contract), then he may well have borne more than is required simply by acceding to the first test given he doesn't work with heavy machinery. And I think the bar for incorporation may well be a high one; if he doesn't work with heavy machinery etc, then an employer who seeks to make random testing a part of their workplace practice really should explicitly identify it before offering the job and explicitly include it as a condition of employment

 

[ponch]

Is that not massively open to abuse though? If you are tested in week 1 you know that you cannot be tested again for another 39 weeks?

 

[Jackal]

I think some people have trouble with defining "random".

The poster above ponch states that he thinks that it may have been the case in a case he/she once read about that the "order" and the "timing" must be random, but not the identity of the person subject to testing. Which would make the testing non-random. . .

In reality it's quite possible it's not an accident the op was selected twice in a short period of time, as others have pointed there could be some contributing factors to his employers desire to have him submit to another test. Perhaps he was found naked in the full lotus position under a table in the cafeteria one day, glistening with sweat and eyes like saucers; but has no recollection of that time. Or not.

 

[tjeff]

I think some people have trouble with defining "random".

The poster above ponch states that he thinks that it may have been the case in a case he/she once read about that the "order" and the "timing" must be random, but not the identity of the person subject to testing. Which would make the testing non-random. . .

Making the test non-random to some degree may well be what the law requires in some cases. If you had an employee who did not work in a role requiring driving / operating machinery, and you tested him five weeks in a row and he resigned on the basis of a repudiatory breach of the implied term of trust and confidence, it's
likely it would be upheld absent an explicit contractual term authorising the testing on that basis.

An employer couldn't simply point to the fact that the tests were, however implausibly, random. Also, we don't know if the selection of this employee was actually random; one would need to examine the emails between the managers / HR staff to see whether it really did occur as they claim.

Either way, the employer may well be in a tricky position if they attempt to discipline him for refusing the test, per the ET case Bedford v H Young Holding plc t/a Anima

In reality it's quite possible it's not an accident the op was selected twice in a short period of time, as others have pointed there could be some contributing factors to his employers desire to have him submit to another test

In which case he would have every right to refuse to submit to the test if the claim of randomness (leaving aside that randomness isn't a defence in and of itself to heavy handed treatment that would cross the line into a repudiatory breach), the employer would be required to request a "for cause" drug test.

An employer can't undertake a "for cause" drug test hidden under the rubric of a random test.

 

[Allein]

I little note here, we can discuss drugs testing in terms of the morality of it and such but on BL we don't allow discussion on how to 'beat the test' etc.

I don't like <snip>ing and we're keen to let thread stay open so please bear the above in mind when posting.

many thanks in advance

 

[tjeff]

Is that not massively open to abuse though? If you are tested in week 1 you know that you cannot be tested again for another 39 weeks?

I'm not sure I'd call it "abuse". If someone isn't in a role that requires regular drug testing for safety reasons and there is no explicit term in the employment contract permitting such testing, then the presumption really goes to the employee. Recent employment tribunal cases are very much in the direction of not accepting employers have a carte blanche to drug test their employees.

 

[tjeff]

I little note here, we can discuss drugs testing in terms of the morality of it and such but on BL we don't allow discussion on how to 'beat the test' etc.

I don't like <snip>ing and we're keen to let thread stay open so please bear the above in mind when posting.

many thanks in advance

Mod edit

<snip>

In truth BL doesnt allow legal discussion either we've let this slide a little here but we may have to close this down

 

[felix]

Please stick around, tjeff, we need a nice pro-bono guy on retainer here.

 

[Allein]

OK, so we donlt tend to get these type of questions often these days and I wanted to just clarify what is currently stated in /Bluelight_User_Agreement_(BLUA) that we all agreed to when we opened our accounts.

I know that in practice we do not allow legal discussion, our Legal Discussion forum was closed down back in 2011 but in fairness it isn't specifically mentioned.

However it does specifically state :- you may not - ask for advice regarding drug tests

In light of that I must declare this thread CLOSED