This short feature is not about the expediency of a new law which makes the possession and use of cannabis legitimate under certain conditions. Plenty of arguments have already been made, for and against. This is about the concern of employers to be safeguarded against harm caused at work by their employees to persons or property while under the influence of cannabis.
Employers have requested the faculty of testing employees to establish whether they are stoned while on their job.
The press reported the opposition of an important workers’ union to this request: “Our legal advice is that, if there is no reasonable suspicion, the employer cannot impose random dope testing.” It would be instructive to establish on what authority this legal advice was based.
The legal position may not be as simple as that. It is absolutely correct that, on principle, the power to arrest, search and seize or to interfere with some rights of individuals, whether by invasive means or otherwise, cannot be exercised in the absence of a reasonable suspicion that a crime has been committed or is likely to be committed. Granted.
The European Court of Human Rights (ECtHR) sitting in Strasbourg has had some occasions of dealing with these issues. I will only home on two cases, which I believe to be indicative of the current trends in human rights law. Both cases had been instituted by employees requested by their employers to undergo a urine test under penalty of dismissal. In one case, all employees were subject to testing for drugs. In the second case, the tests were carried out on a random basis.
The first case decided in Strasbourg related to an office cleaner employed in a privately-owned nuclear power station. She had no access to the more ‘sensitive’ parts of the energy-producing complex and only worked in the administrative offices.
A labour court had ruled that testing for mind-altering drugs such as cannabis was permissible and that the employer was entitled to carry out periodical tests on all employees, whatever their role in the power station. No appeal was entered against this judgment.
Supported by the trade union to which she belonged, before the Strasbourg court, the cleaner invoked breaches of her fundamental human right to privacy. She relied mainly on two arguments.
Firstly, that any interference with individual privacy had to be “according to law” while, in fact, no domestic law authorised that interference but only a judgment by a labour court.
Secondly, she argued that, even assuming that the interference was lawful, compulsory drug testing could not be considered a justifiable measure in view of her limited duties as an office cleaner.
The Strasbourg court, in a very detailed decision, found against her on both counts.
The ECtHR concluded that the drug-testing of employees was an interference but ‘necessary in a democratic society’- Giovanni Bonello
The court acknowledged “that the obligation to submit to drug tests may be discomforting to the individual employee and be seen as interfering with his or her integrity”. But, having regard to a number of legal and factual considerations, the court found that the operational concerns of the employer relating to public safety and the protection of the rights and freedoms of others, in particular those of other employees, “justified the control measure in question”.
The labour court that authorised testing for cannabis had stuck a fair balance between that interest and the applicant’s interest of protecting her personal integrity.
In sum, the ECtHR concluded that the drug-testing of employees was an interference but “necessary in a democratic society”. It, therefore, unanimously dismissed the complaint of the office cleaner as “manifestly ill-founded” and, thus, “inadmissible”.
The facts of the second case appear even more relevant to the issues under discussion, in that the employers were requesting random urine tests for alcohol and other psychotropic drugs from all their employees. Random, in the sense that the persons to be tested were not selected according to pre-established criteria but purely by chance and at irregular intervals, even in the absence of any suspicion of abuse of doping substances.
A crewman working on a large merchant ship, in which this random testing was in place, objected to being subjected to what he considered an unjustified intrusion in his fundamental human right to privacy. His complaints, supported by the trade union to which he belonged, eventually reached the Strasbourg judges.
His case, again, raised several thorny issues in the ambit of the fundamental right to privacy.
The seaman pleaded that, for an interference to the exercise of a human right to be permissible, it had to be based on domestic law which, he claimed, was silent on this point. The ECtHR disagreed, finding the measure had sufficient grounding in law.
The applicant’s second argument appears more challenging: that his employers’ policy that employees submit to random drug testing by providing urine samples interfered with his right to respect for private life and that this interference was not “necessary in a democratic society”.
The Strasbourg court disagreed. It pointed out that the joint (no pun intended) ILO/WHO Committee on the Health of Seafarers had expressed “absolute rejection of the use of drugs, hashish or abuse of medicine or alcohol”.
It quoted with approval the findings of the Chemical-Legal Institute that “besides reducing learning and memory, using hashish could reduce a person’s psychomotor functions… when doing complex tasks”.
The court unanimously dismissed the application as being inadmissible – manifestly ill-founded.
This decision is particularly revealing. The Strasbourg judges were well aware that the measure under examination was random drug testing performed in the absence of a reasonable suspicion.
The ECtHR may raise ex officio issues of breaches of human rights. It failed to find the absence of reasonable suspicion to be a bar to random drug testing. The non-existence of reasonable suspicion did not disturb the ECtHR at all.
Giovanni Bonello is a former judge at the European Court of Human Rights.