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To ensure that alcohol testing is legally defensible, companies should use a limit, which is appropriate and clearly defined in their Alcohol and Drug Policy.

UK Drink Drive Limit

The term “UK drink-drive limit” which is still used by some companies is no longer correct since Scotland reduced their limit from 35mcg/100ml Breath Alcohol Concentration (BrAC) to 22mcg/100ml BrAC in December 2014.

Since this change, some companies who have sites across the UK have adopted two limits, one to mirror the Scottish limit and another to mirror the rest of the UK. This can cause operational issues and lead to confusion for managers and employees. At Hampton Knight, we advise that one limit is agreed for all sites.

What limit should a company apply?

Unless they have to comply with legislation such as aviation or rail, or a client’s limit, your business should set a limit that is based on risk; it does not necessarily have to mirror the local drink-drive limit.

For organisations that do not have to comply with legislation, there is a choice between 22mcg/100ml BrAC or 35mcg/100ml BrAC, although some companies are opting to apply the aviation or rail limit based on risk rather than mirror the local drink-drive limit.

Zero Tolerance

There is some misunderstanding regarding the use of zero tolerance and how it should be applied in a policy, with some businesses using it to define zero levels.  To be clear, zero tolerance does not mean zero levels.

Organisations are using this term without understanding the implications. Zero tolerance is not an enforceable limit, it is used to suspend an employee, who, when tested has an alcohol level above zero (even if it is just above zero) pending a disciplinary investigation.

It is important that employees are not dismissed based on zero tolerance as this could lead to a claim of unfair dismissal by the employee.

Zero Level

Zero level is not legally defensible, zero level as the term suggests means that the company would deem a positive test result when an employee who when tested has an alcohol level above zero (even if it is just above zero). Consequently, the employee would be suspended from work and subject to a disciplinary investigation. If the employee is subsequently dismissed this could lead to a claim of unfair dismissal by the employee. They could claim there was an outside influence to their test result, which they could not claim if the alcohol limit used is a legally defensible one.

Recommendation

The use of zero tolerance or zero levels is not advisable for a policy. The company should use a limit which is appropriate and clearly defined in the policy. It should be referenced as the company limit so employees understand it is based on the needs of the company in terms of risk and health and safety and not linked to the local drink-drive limit.

For more information or clarification on alcohol limits, legislation or any policy queries, please contact Hampton Knight on 01827 65999   

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