Labour Court approves compulsory drug tests

Workers may be obliged to submit themselves to regular drug tests, even if there are no suspicions raised against them. This was the conclusion of a judgment in the Swedish Labour Court on 26 August 1998. The trade union concerned is considering bringing the case before the European Court of Human Rights.

A much debated matter of principle was decided in the Swedish Labour Court on 26 August 1998 (case AD 1998/97). The case concerned a cleaner at a nuclear power station, who refused to go through the routine compulsory drug tests which her employer had introduced. The cleaner is a non-smoker, physically active and a keen sportswoman, and there were no suspicions raised against her.

Unlike the other trade unions at the workplace, the Electricians' Union (Elektrikerförbundet, SEF) of which the worker in question was a member, had not concluded any collective agreement on drug tests. It brought the question to the Labour Court (SE9711153F), claiming in the first instance that the tests were contrary to Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Article 8 provides for a right to respect for people's private life.

The Court decided in favour of the employer. The European Convention contains no general ban on drug tests, the Court ruled, though there may be cases were such tests are carried out in circumstances that are contrary to the Convention. Decisive criteria are, for example, the employer's interests in having the tests done, the extent to which they encroach on the individual's integrity and the way they are performed.

In the case in question, the court found that employer had a legitimate interest in proceeding with the tests, and that the cannabis tests conducted by the employer were performed under circumstances such that the employees could be obliged to accept them.

However, as regards the alcohol tests conducted by the employer, the Court came to another conclusion. First, it stated that there was a difference, in that it is a criminal offence to have anything to do with narcotics, while the use of alcohol is allowed and accepted in our society. Second, alcohol tests are a very poor instrument for monitoring the workers' use of alcohol: in 70% of the cases a positive test result has another explanation. Nevertheless, the occupational health centre began an investigation in all cases. This raised the Court's misgivings, as it encroaches on the workers' integrity in a sensitive sphere.

The SEF is now considering bringing the case before the European Court of Human Rights. Before that, it will, however, try to reach an agreement on the conditions for drug tests with the Swedish Energy Employers' Association (Energiföretagens Arbetsgivareförening, EFA).