‘Legal highs’ – (update) – if government is struggling with the detail, what hope do employers have?

What is the legal development?

This legal comment blog from 6 April has been updated on 3 June 2016 to reflect the fact that the law has now come into effect

The Psychoactive Substances Act 2016 finally came into force on 26 May 2016. It seems that there were some difficulties with enforcement – perhaps an early indication of some of the challenges employers will face managing their use in the workplace.

The legislation introduces a ban on producing, distributing or supplying psychoactive (or mind altering) substances (formerly known as ‘legal highs’), subject to some provisos and exemptions.

What does this mean in practice for employers?

All so-called ‘legal highs’ will be less readily available and policies that refer generally to the use of ‘illegal drugs’ being a disciplinary matter may now cover most mind altering substances used. However, relying on the use of ‘illegal’ drugs as a reason for disciplinary action, may result in complicated arguments about the law and what is or is not ‘illegal’.

There is then the additional challenge of whether inappropriate use is a performance, conduct or ill health issue, and how to prove it. Is drug testing an effective management of the issue (particularly given the ever changing compounds in use), or should managers be relying on their own observation of inappropriate behaviour? Is it the behaviour caused, or the fact of inappropriate substance use, that really matters?

ACAS has produced some useful guidance on addressing the question of substance misuse in the workplace.

Our comment

The management of substance misuse in the workplace is complicated. We would encourage employers to start an open dialogue with their staff to debate the legal, safety and ethical position of any substance misuse - assessing current awareness of the issues will help decide how they should best be managed.