Thursday 22 March 2018

Luas worker's case throws doubt on right to drug-test staff

Andrew Bushe

THE rights of companies to drug test employees is being questioned after toxicology experts disagreed about the findings of a random test on a Luas worker.

The man had been employed by the French company Alstom, manufacturers of the light rail trams, for two years before he was fired in September 2006.

The company said he was employed in a "safety critical role" which cannot be carried out under the influence of banned substances.

But the worker denied at all times he had used the drug.

The worker's case was supported by the European Workplace Drug Testing Society.


On behalf of the worker, the TEEU argued that the level of a banned substance which he was found to have tested positive for was of such a low percentage that the test should properly have been classified as negative.

The union told the Labour Court the worker's sample was 50pc less than the recommended cut-off point for a positive test and "was in fact negative".

It added: "Consequently, he was wrongly accused and unfairly dismissed."

However, Alstom said it has a zero tolerance on intoxicants and where any test shows a positive result, the worker involved will be regarded as guilty of gross misconduct and treated accordingly.

The company's expert witness, who analysed the test, was "firm in his opinion that the result in this case was properly classified as positive".

Alstom told the court that it must ensure that "its operations are governed by the strictest safety policies in line with legal requirements".

The TEEU and Alstom also differed on whether there had been an agreement between them about testing employees for drugs and alcohol.

The court said it is conscious that drug and alcohol testing is becoming an increasingly common feature of many employments, particularly in safety critical areas.

"Changed societal factors, including increased drug abuse, has heightened the need, and the justification, for such testing. The Court has consistently supported the use of drug and alcohol testing in safety critical employments."

However, the court said there was disagreement between expert witnesses on both sides about whether the disputed result should have been classified as positive or negative.

"In the court's view, in all the circumstances of this case, there is room for some doubt as to whether the result in issue should have been reported as positive or negative.

"The court is of the view that the worker should be given the benefit of the doubt."

The court concluded that a "reasonable compromise" in the circumstances was for Alstom to offer the worker his job back, and for the TEEU to accept that.


The court said it was "imperative" that the disagreement on a crucial aspect of the testing procedure be resolved.

Agreed guidelines covering all of the testing procedure, including the processing of results, should be put in place without delay, the court said.

"The parties should commence discussions with that objective immediately," the court added.

Neither the worker nor the drug involved were identified in the court recommendation.

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