It has been reported that a newly launched fingerprint scanner could be used to test employees’ alcohol levels. The new device measures alcohol content in the skin and gives immediate results. It has been developed by AlcoDigital, whose website raises the prospect of employers ‘testing every person, every day’.

However, even if there is a right to require an employee to be tested in an alcohol and drug policy or contract of employment, this right is limited.

If the testing is unreasonable, there is a risk of a constructive dismissal claim on the basis that the employer’s conduct has destroyed the relationship of trust and confidence. Random or systematic testing is unlikely to be lawful (other than for those working in safety critical areas). Health information should usually only be collected in the areas of highest risk.

In terms of the Data Protection Act 1998, collecting and relying on information about employees’ alcohol or drug exposure is only lawful if it satisfies certain conditions e.g. where it is necessary to protect health and safety or where the employee has given explicit consent. Further guidance on an employer’s data protection obligations when testing employees can be found in Part 4.4 of the Data Protection Employment Practices Code and its Supplementary Guidance.

Best practice is to carry out an impact assessment before testing employees which might involve:

  • Identifying the benefits to the employer and any adverse impact on the employees;
  • Considering whether there are any alternatives (e.g. health questionnaires or only testing when a potential issue has been identified);
  • Looking at how much information is given to the employees (who should know the potential consequences of the testing);
  • Deciding (and documenting) whether the testing can be justified.

While testing has its place in certain industries, employers need to be careful of their obligations to employees when doing so – regardless of the latest technology.

Julie Keir

Practice Development Lawyer at Brodies LLP
As a Practice Development Lawyer Julie is responsible for developing and maintaining Brodies Workbox, our award-winning online HR and employment law resource.
Julie Keir