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Thanks to Butterworths.co.uk
Eyeballing staff
A new portable eye scanner just on the market will allow employers to test
workers for drink and drugs more easily and cheaply. But will this contravene
their human rights? Paul Griffin, senior associate at Norton Rose, talks to Mary
Luckham�
About
5% of employers currently test workers for drink and drugs but this number is
increasing. Testing can be costly and invasive but a new portable eye scanner,
the �Eye Check Pupilometer�, which has just come on to the market can tell
instantly if an employee�s reaction is impaired due to drink, drugs or
fatigue.
Will Big Brother soon be watching us all? Not, according to Paul Griffin senior
associate at Norton Rose: "The first point to make here is that employees
can�t be forced to do anything. Such a test can only be carried out with an
employee�s consent; there would be no question of pinning down employees and
forcing them to undergo such a test!".
Problems could arise, he thinks, where an employee refuses to take a test. The
employer will then have to consider whether it is able to discipline or dismiss
the employee.
Firstly, he says: "The question is whether the employer will be in breach
of the Human Rights Act in doing anything to the employee for refusing to take
the test. That would be the first issue which needed to be addressed. Secondly,
whether the employer was in breach of the implied term in a contract of
employment of mutual trust and confidence."
He continues: "I think it would be important to establish whether the
employer has a policy. That it has made it quite clear in the policy and
communicated it to the employees that, firstly they don�t accept drink and
drugs in the workplace and what they would require the employee to do in order
for the employer to test to see whether they had been taking anything. It would
not be enough for an employer to put this in a policy and stick it on the shelf
� it would need to be constantly communicated to employees - for example put
on noticeboards and intranet."
His view is that random testing of employees would, in most circumstances,
contravene the human rights of employees in that he points out: "One of the
factors in deciding if a human right has been breached would be the proportion
of the response of the employer. For example, if somebody comes back from lunch,
reeling then it would be a proportionate response to ask them to take a test but
if everybody was just walking back from lunch and had to take a test randomly
then that is unlikely to be viewed as a proportionate response. This could
contravene the Human Rights Act."
He acknowledges that there would be exceptions to this in circumstances where
the drunkenness of an employee could put others in danger such as workers on oil
rigs or, perhaps bus drivers and pilots and comments: "Perhaps in
situations like that it would be possible to justify random testing."
Another important issue here is, he thinks: "Where the employee agrees to
the eye test, the results would become subject to the data protection
legislation. It would amount to sensitive personal data because it is
potentially related to the employee�s health. That data can only be processed
with the employee�s explicit consent. To publish such data without this
explicit consent could lead to criminal sanctions."
(02/10/03)
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