Is it discriminatory to only drugs test certain employees?

[Raindropsandeardrops]

A family members work place has decided to drugs test employees. Originally it was said to be everyone being tested.

Now it's turned out to be only the three younger members of staff all in their 20s.
They've been told they can refuse but will be assumed guilty if they do.
If guilty they will allegedly be fired.

One staff member is a vulnerable young person with additional needs.

I thought it had to be random and genuinely random or position based?

There are other staff members who work in the same vulnerable client facing role but who are older.

Just to add none of the three being tested have contracts.

Yeah it does seem unfair.

I doubt its legal. Is it this country? Are they working with machinery or having driving roles or train driving roles that sort of thing? I know some construction roles are required to have this due to the machinery.

Is this a big company/team or a smaller workplace?

Sounds like age discrimination unless there is a specific justification for only targeting those individuals.

Yes in the UK, England.

They work with children.
One has been doing the job almost five years already, no suggestion of drug taking what so ever.
The others have been in the role 3 years.

It sounds like discrimination to me but I am not a lawyer.

Do you think that they are trying to manage out the youngest employees?

Depends on the job. Unsafe working if taking drugs could result in tests. Working in an office - no. Age isn’t normally a factor. It’s the job.

If there’s a cause then it’s fine to check specific people, for example if someone has made a report to the business that a young employee has been seen taking drugs or talking about it then it’s reasonable as part of investigating the situation. If it’s from a random testing programme then it would seem odd that only the youngest employees are being selected.

Smaller, 8 or so staff members.
Only the younger 3 being tested.

It's not great, but providing they are all clean then they don't need to worry about losing their jobs and they can fight management on why they were "selected".

Everyone is legally entitled to a contract. If they have been there for 5 years and are employed to work with children they should definitely have one! It sounds like their employers haven't a clue about employment law.

Individuals can be selected for repeated random testing as a condition of continued employment if there is a proven history of substance abuse in the workplace and they want to give the employee another chance.

A company can have a policy of randomly testing all employees or employees in certain jobs but I don't think they can select a group of people to randomly test whilst excluding other people doing the same job from the testing.

I wonder if they suspect one of the younger employees of using drugs and have decided this is the best way to find out without making it obvious. It's poor management, unnecessary and possibly illegal.

Do they work in a nursery, and are you sure theres been no allegations from parents of thinking staff were under the influence or smelt of dope/drink or whatever? Are they under investigation?

I know at least one of them has asked previously and been told that at the most they could have a casual hours zero hours contract.
They work set hours and days a week which imo is not what casual contracts are for and is just a way to not pay them at seasonal times when the workplace is closed...

If they work and are paid for it, the contract is assumed to be present.

Thank you.
That is interesting.
Would that be from a legal standpoint?

They could seek Acas for some advice. There should be a drug and alcohol testing policy that will specify the grounds. If they work with children then if there is a reason to test I believe they can particularly if it is associated to potential risks.

A contract of employment does not have to be written down for a contract to exist. Work in return for money is a contract. Look at ACAS @Raindropsandeardrops for very good advice on employment legislation. A written employment contract is best of course and a handbook with other employment policies too, but they are employed.

Thank you

The working with children being a reason for test is absolutely valid and I do understand that.

My question was more around the other older members of staff who also work face to face with children not being tested.

I think it can be random with anyone and I’ve known organisations do this to sort of set out to people that this is happening when there is reason to believe that people may be using substances/ drinking before work, but it shouldn’t be the same people agin and again. I’ve also known it happen where there is suspicion about an individual person but my recollection is that they were told of the reason for the test. If it was proved that they were testing due to age then this would be discrimination.

An awful lot of that sounds dodgy.
Given what they say about not giving staff there for 5 years a contract, I wouldn't trust a word they say about doing drug tests.

Hmm they used to do this in our company - turn up announced and “randomly” select people out of the staff signing in book for drugs and alcohol testing. If it was that random I feel like all names should have been put into a hat and pulled out in view of at least some members of staff. It always smelt fishy to me.

This is what the government says

This is what HSE says.