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You the jury: Cannabis law and drug testing (Pt II)

Don Barnard

Publication

Thursday 23 Sep 1999

Appendix 1
How cannabis became illegal

AT present, cannabis is classified as a dangerous drug, under the United
Nations Single Convention on Narcotic Drugs 1961, on which the UK Misuse of
Drugs Act 1971 is based. Cannabis was first made illegal in the UK on
September 28 1928, because of its misrepresentation as a narcotic, i.e. a
harmful drug.

Until 1879 cannabis hemp was the most-cultivated non-food crop on earth and
its fibber was the most-traded commodity. Cannabis hemp production and
growing then went into decline with the introduction of cheaper, though
inferior fibres like jute, sisal, manila hemp and cotton.

Cannabis hemp's decline was halted in 1930 when an efficient processor,
known as a decorticator, was developed and it quickly became apparent that
the cannabis plant would again become a prominent crop in agriculture and
commerce.

But by the late 1920s the multinational pharmaceutical and petrochemical
giant, DuPont, had geared up to release its new wonder fibber, Nylon. DuPont
had invested many millions of dollars into its development, and with
cannabis hemp suddenly poised to make a comeback, it became the new
synthetic fabric's main rival.

DuPont's banker Andrew Mellon - the head of Mellon bank and of the US
Treasury - was a close relative of Harry Anslinger, (head of the FBI
1930-62). When alcohol prohibition laws were repealed, Anslinger, a
bureaucrat who had previously been with the US Treasury Department enforcing
the prohibition of alcohol, was faced with being out of a job, so he turned
his attention to cannabis or "marijuana." With a little bit of help from his
friends and family, he assumed control or the newly formed 'Bureau of
Narcotics.'

With the help of ally Randolph Hearst, the newspaper magnate, Anslinger
began a campaign of misinformation against cannabis hemp, which they renamed
marijuana, playing on racism and xenophobia.

It was so effective that by 1938 the US Congress passed the Marijuana
Transfer Tax Act, quite unaware that what they were banning was cannabis
hemp, a plant they had been trading profitably for centuries.

A myth was born and still lives on today

Things began to change in the early 1940s when the LaGuardia Report was
published. It concluded: "The use of marijuana did not lead to physical,
mental or moral degradation and no permanent deleterious effects from its
continual use were observed."

To counter this criticism Anslinger solicited the support of religious
women's groups and the media, using the emergence of a more dangerous drug -
heroin. Around this time stories claiming heroin use was widespread and its
use was spreading fast.

Anslinger was not one to miss an opportunity to support his one-man war
against marijuana. He simply blamed the use of heroin on cannabis, by the
simple statement: "Marijuana leads directly to heroin addiction." He called
it: "a gateway substance."

Another myth was born and still lives today

Anslinger continued his cannabis vendetta effectively, at home and abroad.

He was the prime mover of the 1961 UN Single Convention Treaty regulating
narcotic drugs throughout the world - ironically; it was not until May 1967
that the US Senate ratified the Single Convention Treaty.

The 1970's saw a new era of science against marijuana when hundreds of
scientific (sic) reports began to appear claiming marijuana caused all kinds
of diseases: brain damage, lung cancer, deformed babies, impairment to drive
or work, to name but a few.


More myths were born and live on today

Anslinger died in 1975: it was truly the end of an era. However, by then,
the damage had already been done. Cannabis had been unfairly labeled, across
the majority of the globe, as a dangerous drug, which required legislation
to ban it.

**********
A picture paints a thousand words

Atlanta Georgian, February 27 1935 New Orleans, Times-Picayune, June 5
1930
*********
A brief history of UK cannabis control

THE first moves to control drugs in the UK occurred during the First World
War, because of concern that troops were using heroin. This was dealt with
by the defence of the realm regulations that made it an offence to sell
intoxicants to a member of the armed forces; these were later to be extended
to the civilian population by restricting the possession of cocaine and
opium to authorised persons.

After the war the Dangerous Drugs Act 1920 - the first of a long series -
became law. In the discussions leading up to the 1925 convention, the
Egyptian delegate proposed that hashish (cannabis) should be included in the
list of drugs to be brought under control, he spoke of the evils of 'hashish
' and stigmatised its use as the principal cause of most of the cases of
insanity in his country.

The UK and India (then under British rule) adopted a cautious attitude to
complete prohibition. The UK at the time had no domestic interest in
cannabis apart from some minor use of medicinal preparations (extracts and
tinctures of cannabis).

The Indian representative pointed out cannabis had been used in India from
time immemorial for customary use and religious purposes and doubted whether
total prohibition of a plant that grew wild could be made effective.

The 1925 convention, as finally agreed, brought cannabis hemp under a
measure of international control for the first time. The sole purpose of
this was to give effect to the Geneva Convention.

This act seems to have attracted very little attention in the UK and
passed through parliament with little debate, finally coming into force on
September 28th 1928.

As a result of changes in international controls further acts followed in
1932, 1950 and 1951, but these did not affect cannabis. From 1954 it was
decreed that cannabis no longer served any useful purpose in medicine.

There were no further changes until 1961 when the UK signed the Single
Convention on Narcotic Drugs which consolidated and extended the earlier
conventions on narcotic controls.

This act brought cannabis within the full regime of control, requiring the
parties to limit the production, manufacture, export, import and
distribution of cannabis and other drugs exclusively to medical and
scientific needs.

Further, having regard to the 'particularly dangerous properties' of
cannabis it was placed in schedule IV, denying any medical usage, and
requiring parties to adopt special measures of necessary to control it.

The obligations accepted by the UK as a party to the 1961 Single
Convention were translated into UK domestic law by the 1964-1965 Dangerous
Drugs Acts, which prohibited all transactions in, and the possession of
cannabis, (apart from a few minor specialist uses).

The 1965 act remained in force until 1971 when it was replaced by the
Misuse of Drugs Act 1971 that made important changes in the system on
control and introduced a number of completely new features.

"Controlled drugs" - a new term - were divided into three classes: A, B,
and C, according to their considered harm. Cannabis, while remaining an
illegal drug in Schedule 1 of the UK Misuse of Drugs Act, was placed in
class B. Another important change effected by the 1971 act was to
distinguish between unlawful possession and unlawful supply.

The 1990s saw further changes with the introduction of the 1992 Transport
and Workers Act. This act introduced urine testing into the arena,
requiring people in safety-critical jobs such as train drivers and pilots to
be random drug tested by their employers.

In 1994 the UK government introduced its 'Tackling Drugs Together'
initiative, with the publication of a consultation document (a collection of
inter governmental department memos) which heavily promoted the use of drug
testing on soldiers and prisoners, a practice which is being expanded by
today's Labour government.

*****
Appendix 2
Statistics (Data source: Home Office)

Appendix 2.1 Drug offences in the UK 1985-95



ALL REPORTED OFFENCES EXCLUDING POSSESSION 1985-95
1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 TOTAL
All Trafficking 5,244 4,679 5,077 5,019 6,108 6,680 6,329 6,678
9,170 9,906 15,852 80,742
Intent to supply 1,895 1,858 1,896 2,062 2,355 2,751 2,782 3,203
4,867 5,326 6,554 35,549
Supply 2,100 1,876 1,965 1,662 1,740 2,151 2,133 2,189 3,305
3,651 4,301 27,073
Import/Export 1,788 1,525 1,779 1,848 2,577 2,478 2,136 2,034
1,945 1,882 1,492 21,484
Use of premises 284 251 304 242 312 408 377 341 429 551 669
4,168
Other offences 395 453 538 609 670 717 620 584 596 695 755
6,048


ALL REPORTED OFFENCES BY DRUG TYPE AND YEAR 1985-95
1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 TOTAL
Cocaine 632 449 518 591 786 860 838 913 1,671 1,804 2,073
11,135
Heroin 3,227 2,259 2,151 1,856 1,769 1,605 1,466 1,415 2,164
2,971 4,219 25,102
LSD 539 286 300 240 435 915 1,200 1,428 1,891 1,878 1,268
10,308
MDMA 0 0 0 0 0 286 559 1,516 1,577 1,881 3,281 9,100
Amphetamines 2,946 2,655 2,290 2,538 2,395 2,330 3,532 5,653 7,622
8,456 10,364 50,781
Cannabis 21,337 19,286 21,733 26,111 33,669 40,194 42,209 41,553
56,390 72,393 76,694 451,569
Others 1,120 611 1,237 1,266 1,037 1,452 1,216 1,242 3,624 3,683
4,086 20,574
All offences 29,801 25,546 28,229 32,602 40,091 47,642 51,020
55,720 74,939 96,066 101,985 578,641

Appendix 2.2: Breakdown of drug offences into possession and trafficking

GRAPH

Appendix 2.3: Extra government spending to tackle drugs 1999-2002
(millions)

GRAPH

Appendix 2.4: All drug seizures by drug type and year 1985-95 (percent of
all drug seizures)

GRAPH
*********
Appendix 3
How long does a drug stay in your system?

CANNABIS. The cannabis constituent that produces the high is called
Delta-9-tetrahydrocannabinol (Delta-9-THC, widely known as THC.)

Delta-9-THC enters the bloodstream rapidly after smoking (in minutes) or
more slowly when ingested orally (20 minutes to 1.5 hours). It is rapidly
metabolised into inert molecules known as metabolites. These chemicals also
have the word Tetrahydrocannabinol in them and are called THC, which can be
quite confusing.

Delta-9-THC is detectable in the blood for a few hours, but none of this
active chemical is found in the urine or stored in the fatty tissues such as
the liver and brain.

What is frequently described as THC's lingering in the body fluids and
organs are metabolites of Delta-9-THC, the inert substances that the body
disposes of in the urine and excrement, in much the same way as it disposes
with Vitamin A.
It is these that are detected in the body organs and urine, long after the
effects of Delta-9-THC have worn off.

These metabolites can linger more than 90 days in some cases. For
occasional users, an average of 13 days was recorded. Some people had
metabolites detectable for just three days; others found the substances
still in the urine after up to 29 days.

But a positive body fluid or hair test for cannabis does not mean that the
person was under the influence of the substance, or impaired in any way at
the time the specimen was collected. All it tells the tester is that the
person may or may not have ingested cannabis in the recent past.

COCAINE is rapidly absorbed after smoking with the maximum plasma
concentration occurring in 5 minutes.

After snorting or sniffing maximum concentrations are reached in 30 to 40
minutes. Cocaine is metabolised extensively with only 1% being excreted
unchanged in the urine. The major metabolite -Benzoylecgonine - can be
detected by an immunoassay test for approximately 48 hours. Again, a drug
test cannot show the level of impairment at the time the test was taken.

AMPHETAMINES are metabolised and the drug will appear in the urine.

Unchanged amphetamines have been detected in the urine up to 29 hours after
a single dose of 5 mg. A positive amphetamine analysis indicates the use of
amphetamine 24 to 48 hours previously. Again, it cannot show the level of
impairment at the time the test was taken.

OPIATES including morphine, heroin, are rapidly absorbed after oral
ingestion, with peak plasma levels occurring about 15 to 60 minutes after
the drug has been taken. After injection it peaks in 15 minutes. The
principal metabolite for detection is morphine-3, glucronide, which can be
detected in the urine for around 48 hours. Again, it cannot show the level
of impairment at the time the test was taken.

HEROIN has a similar pattern of metabolisation and excretion to morphine,
and a typical test will show a positive result between two and four days
after use. Again, it cannot show the level of impairment at the time the
test was taken.

LYSERGIC ACID DIETHYLAMIDE (LSD) has its effect within minutes after use
but can last for 12 hours. LSD is rapidly metabolised and only a very small
portion of the dose is excreted unchanged in the urine. LSD itself, however,
can be detected up to 30 hours after use and the metabolites can be detected
for periods of up to 72 hours. Again, it cannot show the level of impairment
at the time the test was taken.
****88888
Appendix 4
Common sense

A CAUTION against some terminology, doublespeak and innuendo often quoted
by the authorities concerning drug and their effects (a lot of this
misinformation particularly refers to cannabis use).

Words such as: may, might, could, possible. These simply mean that no harm
has been established. They are not scientific or material facts, and should
be disregarded as hearsay.

Comparative evaluations such as "Cannabis is more dangerous than tobacco,"
or "Cannabis has a similar effect on a person to alcohol." These are
entirely subjective statements.

Comparisons between cannabis and so-called "hard' drugs (another
misnomer - there are only drugs, some more harmful than others). Ecstasy,
cocaine, heroin and cannabis are all Schedule 1 drugs under the Misuse of
Drugs Act 1971. Any direct comparison should be approached with extreme
caution.

Clearly, in spite of the current ban there is no doubt that cannabis is
being consumed on a substantial scale, and the illegal cannabis market has
succeeded to a remarkable extent in maintaining the supply of a commodity
for which there is a rapidly increasing demand. And it is an open-ended
question whether or not this trend will continue!

At the same time enforcement has had a number of undesirable social
consequences, the most important being that a considerable number of people
of good character have found themselves at odds with the law who would not
otherwise have done so. It is against this background that we examined the
implications of 'random drug screening tests' for impairment:

We find the suggestion drug screening is designed for health reasons and
not to expose employees for dismissal controversial. Drug screening leaves
at least one important unanswered question: What do employers do with
employees that are found to have traces of cannabis use at any level in
their body fluids or hair?

Today many people caught with cannabis opt to take drug rehabilitation
programs instead of prison time. This treatment option may reduce actual
prison costs but does not substantially reduce surveillance, arrest and
other pre-sentencing costs.

However, people who break the cannabis laws are neither physically
dependent nor psychologically sick - if they are, cannabis has not made
them that way. Most simply refuse to conform to a law that they hold to be
unjust.

Those who wish to stop using cannabis only need willpower - medical
research has shown that cannabis is not addictive. Indiscriminately forcing
cannabis offenders into rehabilitation programs means the system wastes
resources trying to "cure" people who have no need or real desire to be
cured and probably resent the whole process. The NHS does not even have
specialised treatments for cannabis users as they have said they see no need
for them.

At the same time, overcrowding will mean centres will be forced to turn
away cocaine or heroin addicts and alcoholics. Such a policy not only makes
drug treatment less efficient; it may well increase crime committed by
genuine drug addicts who cannot get treatment.
**********
Cannabis and driving

INCREASINGLY there have been calls to test drivers for drugs other than
alcohol.

Consider the resources implication of this proposal. Over 500,000 drivers
take the Breathalyzer every year. If we were to test for illicit drugs also,
it could add at least another 50 million to the bill every year.

Do cannabis users have the same, higher or lower rates of road traffic
accidents as the general public? In very high doses, cannabis probably does
cause driving impairment. But there is no real evidence to support claims
that cannabis consumption contributes significantly to road traffic
accidents.

Strange as it may sound, much of the evidence suggests that cannabis use
may actually make you a more careful driver!

The largest ever study examining road accidents with regard to drugs and
alcohol found drivers with cannabis in their blood were no more at risk than
those who were drug-free.

The findings of a pharmacology team from the University of Adelaide showed
drivers who had smoked marijuana were marginally less likely to have an
accident than those who were drug-free.

A study representative, Dr. Jason White, said the difference was not great
enough to be statistically significant but could be explained by anecdotal
evidence that marijuana smokers were more cautious and drove more slowly
because of altered time perception.

Research has also suggested that drivers under the influence of cannabis
retain insight into performance and tend to compensate for impairment,
either by slowing down or by increasing effort.

The study has policy implications for those who argue drug detection
should be a new focus for road safety. Dr. White said the study showed the
importance of concentrating efforts on alcohol rather than other drugs.

Should we be drug-testing drivers at such great expense?

How effective would drug testing be in decreasing road accidents?

We know that the presence of certain drug-residue metabolites is no
indication of when the substance was consumed, and no indication that the
person was still under the its influence.

Surely it would make more sense to test driving skills themselves? All the
necessary laws are already in place to enable prosecutions against erratic
or dangerous drivers.

It would seem the only group that would stand to gain from the widespread
introduction of drug testing would be the manufacturers of the drug testing
kits and the companies contracted by the state to carry out the subsequent
analysis.
********
Drugs and the workplace

THERE are approximately 3.5 million regular illicit drug users in the UK, of
which approximately 94% are of working age. If 35% (1,225,000) of these are
in employment and there are about 27,358,000 people in work, only 4.5 % of
the actual total workforce is alleged to be using illicit drugs! Clearly,
the government's figure of 35% is meant to mislead.

One suggested solution to drug abuse in the workplace is random drug
testing the whole workforce. But can we afford it? Assuming tests cost 25
and we test 5% of the workforce monthly, this would involve 1,367,000 tests
every month, at an annual cost in excess of 34 million.

In a healthy, productive society and workplace employers do have the right
to expect their employees not to be drunk, asleep, or under the influence of
illicit substances on the job.

But the bottom line should be work performance, health and safety, not
whether someone has tested positive for recent use of a prohibited
substance.

These chemical tests cannot prove impairment when other factors may be the
cause for an employer being dissatisfied with an employees performance such
as stress, family difficulties, underlying mental or physical health
problems or incompetence, to name but a few.

Efficient supervision of the workforce is a much better way of ensuring
that individuals are assessed on dexterity and competence in their duties.

It would not take long to establish problem areas and address them by
appropriate action, which could involve sacking after all aspects, have been
fully investigated. Otherwise, employers may find themselves having to
dismiss some of their best workers for no good reason.

Surprising as it may seem some of the data use to support workplace tests
can be used to prove drug use has minimal derogatory effects on workers and
could even have beneficial effects.

For example, in a recent study involving 132 workers at the Utah Power and
Light Company and the Georgia Power Company, companies annually spent $215
per employee less on the drug users in health benefits, than on the control
group!

Those who tested positive at Georgia Power had a higher promotion rate than
the company average. Further, workers who tested positive at the Georgia
Power Company for cannabis only - 35% of the total positives - took 30% less
time off than the national average.

This suggests an employer's best course of action is to test only when they
have to, then disregard the results and hire the positives!

Schools and drug testing

If a student is impaired by drugs their studies and work will surely suffer,
and the slipping standards will highlight any problems. These can be
addressed and help can be offered to individuals to face and overcome them.
Competent supervision and assessment may not be a simplistic an option as
drug tests, but they will prove a better investment in our children's
future.

The bottom line is trust. Schools need to concentrate in creating an
atmosphere of trust and cooperation, not one of suspicion and fear. Good
student morale is important to the efficient running of a school, and drug
testing demonstrably harms it.
*******
Appendix 5
Action open to you

THE case for urine screening tests, although well intentioned, is
fundamentally flawed, as it has been shown that drug-screening tests are
unsafe. But this will not stop some employers imposing drug-testing clauses
in their employee's contract of employment.

How can you protect yourself against being unfairly selected for a drug
screening and the possibility of being forced to go into a drug
rehabilitation centre, asked to resign or being dismissed?

Employment Protection Act

There is very little in the Employment Protection Act to give you
protection against unfair treatment during the course of employment. The
most relevant in reference to unfair dismissal as a result of a company
applying it's drug or alcohol policy is Sections: 54, 55, and 57; An
employee may claim re-instatement, re-engagement or compensation. An
industrial tribunal hearing the claims will have to decide if the reasons
for the dismissal were potentially fair and if so, whether the dismissal was
fair or unfair, in all the circumstances of the case.

Where an employee is faced with a drug screening test that he/she
considers unreasonable and /or and invasion of privacy the employee may
refuse to have the test.
Where a sanction is one of dismissal, the employee could subsequently
bring a claim for unfair dismissal before an industrial tribunal.

The employer's argument would be the reason for the dismissal was the
employee's conduct (namely refusing to be drug tested) or alternately, some
other substantial reason namely. The need to ensure a safe working place by
the screening of employees who take controlled substances and/or their need
to avoid any breach of the Misuse of Drugs Act 1971, section 8, and would be
likely to establish a potentially fair reason.
The issue before the tribunal would then be whether or not such dismissal
was fair in all the circumstances under section 57. The factors that a
tribunal is likely to take into account would include the duties of the
employee and their connection with safety at work and for the members of the
public, the illegality of the employee's actions, the effect on the employer
's reputation, whether the conduct was on or off duty, and if there was any
contact with children.
Unfortunately for the purpose of advice there appears to be few reported
decisions specifically on the issues raised by drug screening tests whether
random or for cause. But in today's anti drug climate many tribunals would
uphold the right of an employer's right to have a policy requiring random
testing of employees in safety critical posts.
This would leave open a challenge by the employee whether his/her
position was truly safety critical. If an employee could show arbitrary or
unreasonable identification of their posts, a tribunal could well rule in
their favour.
It would also leave open a challenge as to the procedure for carrying out
drug screening tests. If the procedure unnecessarily infringes the employee'
s privacy and/or personal dignity this would be a strong argument before the
industrial tribunal for saying that it was reasonable for the employee to
protest and/or to refuse to undergo such a test.
*******
As to the effectiveness of drug screening tests, if it was shown in any
case that the employer was in possession of evidence suggesting the tests
they were carrying out were not effective in measuring current impairment,
and yet took disciplinary action against an employee on the strength of such
a test, it would be strongly arguable that such disciplinary action was
unfair.
More generally, as to whether or not dismissals for breaches of company
rule will be held fair, the following decisions set out some principals
generally followed by industrial tribunals and courts.
The fact that a company rule is strictly applied and all breaches of it
are automatically result in dismissal does not make all consequential
dismissals fair under Section 57(3) of the Employment Protection Act 1978.
It still has to be decided whether dismissal is a reasonable response to a
particular breach of rules. Each case has to be considered on its own merit.
When facing an unreasonable accusation that they have been taking illicit
drugs and/or the unreasonable imposition of drug screening, the employee's
position will normally be strong if, rather than resigning, they await the
outcome of any disciplinary proceedings and see whether the employer decides
to dismiss.
If an employee resigns they must first establish that the resignation
constitutes 'dismissal' for the purpose of Section 55 (2c), and only if the
employee surmounts this hurdle will the issue of reasonableness come before
the industrial tribunal.

Some important tribunal judgements

In the case of Woods v WM. Car Services 1982 ICR 693 the Court of Appeal
upheld a decision of the industrial tribunal that Mrs. Wood had been
constructively dismissed when she resigned over a dispute whether she worked
longer hours or to took a pay cut. The Court of Appeals stated that: 'In our
view it is clearly established that there is implied in a contract of
employment.' a term that the employer must not, without reasonable and
proper cause, conduct themselves in a manner calculated or likely to destroy
or seriously damage the relationship of confidence and trust between
employer and employee."

This approach was applied in Bliss v South East Thames Regional Health
Authority 1987 ICR 700, CA where it was held that an employer cannot require
without reasonable cause that an employee undergoes a medical examination.
This case has obvious implications in respect to company drug screening
policy and/or medical examinations in the context of drug policies!

It would also be up to a tribunal to decide whether a company's blanket
policy not to employ registered drug addicts was unfair. In the case of
Davies v British Airways Board (unreported) EAT 139/80 the tribunal stated:
'The dismissal of an air steward for forging prescriptions for amphetamines
which he used to counteract fatigue was found to be unfair in the absence of
a proper investigation of the effects of the drug on his capability.'

The fact that an employee convicted of drugs' offences has contact with
children does not necessarily mean his subsequent dismissal is fair. Each
case must depend on its own facts, In the case Norfolk County Council v.
Bernard (1979) IRLR 220 the Employment Appeal tribunal upheld the industrial
tribunal's findings the dismissal of a drama teacher who had admitted to
possession of herbal cannabis that had been found in his car was unfair.

It is frequently stated that the small consumption of some drugs, for
example, cannabis, will not affect performance when consumption has been
approximately 3 hours subsequent to reporting for duty.
However, when it comes to the use of occasional small use illicit
substances there would appear to be reason for concern, as has been shown
the traces of cannabis use remains in the system long after any impairment
of faculty has vanished.
**********
While the case of Norfolk County Council v. Bernard indicates that
possession of illegal substances will not necessarily lead to a finding of
fair dismissal it is highly unlikely in today's anti-drug hysteria that many
industrial tribunals would overturn a dismissal.
Tribunals would in probability, uphold an absolute policy of forbidding
the consumption of illegal drugs in safety critical posts.
A further consideration would be the employee's use of illicit substances
in itself is a crime punishable under criminal law.
As previously mentioned there is a wealth of case law from the United
States, especially surrounding the fourth amendment. However, there is
currently no equivalent to this in UK law. It would be up to an industrial
tribunal considering the case whether or not to accept any relevant case law
from the US in support of the of the employees or indeed the employers'
case.

International law

One can turn to the European Convention of Human Rights 8(1):

"Everyone has the right to respect for his private and family life, his
home and his correspondence."

8(2), however, override these:

"There shall be no interference by a public authority with the exercise of
this right except such as is in accordance with the law and is necessary in
a democratic society, in the interest of national security, public safety or
the economic well-being of the country, for the prevention of disorder or
crime, for the protection of health or morality, or for the protection of
the rights and freedom of others."

The difficulty in respect of a complaint as to the imposition of a
drug-screening test is that one of the exceptions specifically relates to
"public safety" where, for example, the employer in question is concerned
with the provision of a service to the public. The policy clearly seeks to
ensure safety of such a service.
An employer would be likely to succeed in justifying such a policy under
Article 8 (2). It would however still be open to argument whether while the
policy in general might be justified the particular steps complained of, for
example random drug screening tests by way of testing body fluids or hair,
was not necessary for public safety.
This would require detailed and careful argument and would depend on
establishing that the public safety could be fully safeguarded by other
means.
It would be for the employer to show that the measure under attack was
both necessary a proportionate to the ends. That would require consideration
as to what other steps could achieve the objective in a manner that did not
infringe Article 8 (1). Many cases have been found to be a breach of Article
8(1) but justified under 8(2).

The International Covenant on Civil and Political Rights (ICCPR)/Universal
Declaration of Human Rights may also offer a means of redress. Article 17
provides:

No one shall be subjected to arbitrary or unlawful interference with his
privacy, family, home or correspondence, nor to unlawful attacks on his
honour and reputation.

Everyone has the right to the protection of the law against such
interference or attack.

Article 12 of the UN's Universal Declaration of Human Rights provides
similar terms.

by Tess Gill


 

 

 

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