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Cannabis Campaigners' Guide News Database result:
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UK: When drug use is not a sacking offence
Grania Langdon-Down The Times
Tuesday 17 Jul 2001 If the government line on cannabis softens employers may have to revise their views With the growing debate on the case for decriminalising cannabis, employers and employees will have to be sensitive to any softening of government policy. David Blunkett, the Home Secretary, has hinted that the Government may consider the case for decriminalisation while Peter Lilley, a former Conservative Cabinet member, has called for cannabis to be sold through licensed outlets. Martin Palmer. a senior employment associate with the international law firm Allen & Overy, believes employment tribunals will subtly shift their stance accordingly. 'I think tribunals will act consistently with the way the criminal law develops and with the softening line being taken in some police areas. While I do not think this will mean tribunals will adopt an overtly liberal approach to cannabis use by employees, I think they will now take a highly questioning view of whether an individual's use of cannabis really amounts to grounds for dismissal. 'In the recent employment tribunal case of Wilson v David Lloyd Leisure Centre, Robert Wilson successfully challenged the fairness of his dismissal after he was found with cannabis in the car park. The tribunal agreed that the centre had a right to be concerned about the impact of drugs on the health club but said it had unfairly dismissed him. 'It is probably the first time that someone has argued in an employment tribunal in connection with a substance abuse termination that his right to a private life under Article 8 of the Human Rights Act has been violated. I think this case is significant because employees who, for example, refuse to take part in their company's drug testing programmes and suffer some form of detriment - dismissal or lack of promotion - are likely to use similar arguments.' This will mean that the way employers deal with drug-taking by recruits or employees is no longer cut and dried. 'Some organisations like the Army still have an iron rule that drug taking results in instant dismissal but other employers increasingly see drugs and alcohol abuse as a medical issue rather than a conduct issue that should lead to dismissal,' says Palmer. 'However, I do not think you will see employers softening their line that drugs are drugs. Clients I encounter view cannabis as a class A drug. But I think they will have to be sensitive to changes in society.' A survey by Allen & Overy's employment, pensions and incentives department of 100 client companies, from big plcs to small businesses and charities, found a third had policies allowing testing in the workplace. Palmer believes it is important that testing is backed up by a substance abuse policy, otherwise it could become an exercise in fear. 'The key is having a fair and reasonable policy, which does not need to include testing. The aim is to make it extremely difficult for someone who then infringes the policy to allege that their subsequent dismissal is unfair,' he says. Employers using pre-employment screening would not fall foul of the Human Rights Act, Palmer believes, because all they are doing is asking people to confirm whether or not they are using an illicit substance or have an alcohol problem. 'Article 8 doesn't allow you to argue that, prior to becoming an employee, the refusal to give you a job because you have tested positive is a breach of your right to privacy. Human Rights Act breaches have to be tagged to claims for unfair or wrongful dismissal. Since you are being tested before being given a job, there are no grounds upon which you can argue your right to privacy has been violated.' When BP introduced pre- employment screening for drugs for manual jobs in Glasgow, 50 per cent failed the tests. Now candidates know that they will be tested, fewer go for the jobs and the failure rate has dropped to 1 per cent. For Lucy Wright, BP's regional medical director, testing was secondary to having a policy that encouraged employees to admit to a problem. 'It is then dealt with in strict confidence. We usually enter into a written agreement which says we will give them paid time off to attend courses and counselling, while they agree to stay clean for at least two years. 'The number who have done that runs into tens and so far we haven't had anyone failing to stay the course. When one man who had been through a treatment programme for alcohol went off the rails again after seven years, having always been a conscientious worker, we supported him again.' In the legal world few firms have substance abuse policies, according to Barry Pritchard, co-ordinator of Solcare, set up four years ago to help solicitors with problems caused by drugs, alcohol, stress or depression. 'The number of solicitors calling us about drugs is virtually non-existent, probably because they are worried about jeopardising their practising certificates, even though we are not obliged to report them to the Law Society. However, we hear from treatment centres that they are dealing with more and more lawyers with drug problems.' He believes that the key is treatment. 'The Solicitors Disciplinary Tribunal is more compassionate than five or ten years ago and if you have undergone treatment, it can help to mitigate the penalty.'
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