Employment Essentials: Drugs in the workplace - what employers need to know

Welcome to the latest episode of Gowling WLG's Employment Essentials Podcast, where we discuss the latest developments and challenges affecting employment law in the UK.

Jonathan: Hello, my name is Jonathan Chamberlain. I am a Partner in and Head of the Employment, Labour and Equalities team here at Gowling WLG UK. I'm here with my Partner Anna Fletcher.

Anna: Hi Jonathan.

Jonathan: And we are here to do drugs. Well, obviously we're not here actually to use them, but we're here to talk about them. If I can explain the genesis of this podcast, Anna and I had both been asked to do some work for a client on introducing a random drug testing policy, and that's relatively unusual in the UK, particularly outside of highly regulated sectors.

So we - and when I say we I mean Anna - did a lot of work looking into drug use in the workplace in the UK, and it's fair to say that some of the things that she found were both surprising and concerning. So, we are here to talk about that today and what that means for your workplace and, particularly Anna, we are now moving away, aren't we, from regulated sectors like transport - be it aviation or rail - or sectors where heavy machinery is involved where there's always been very strong restrictions about the use of substances or being under the influence of substances in the workplace. And we're moving into the offices, aren't we?

Anna: Yes, we are. I think it's really interesting, Jonathan. We do a lot of work within those health and safety critical sectors and industries. So, I think it's quite commonplace to be asked to advise on drug and alcohol testing in the workplace. But just recently I was asked to look at this for an organisation that you would definitely describe as being white collar, which was very interesting exercise. And it got me thinking and it got me looking and I realised there was an absolute dearth of data in relation to the professional working environment.

Jonathan: We'll come on to what you did find in a moment, but just so we know where we're starting from, we're talking about drugs. What sort of things are we talking about here?

Anna: I think we're talking about a whole plethora of things. So, from alcohol right the way through to cannabis and cocaine, ketamine - which is particularly prevalent and, on the increase, - through to opioids and opioid abuse and misuse. And then through to what are the so-called smart drugs. So that could actually include caffeine, which I'm sure we've all indulged in during the course of the working day, but right the way through to prescription amphetamines, things like Adderall.

Jonathan: Crikey. Well, caffeine, full disclosure, I am actually sipping a cup of coffee as we are recording this podcast. So perhaps I was wrong at the beginning when I said we weren't going to actually do drugs. To go back to what you said a moment ago, you said there was a dearth of data. What did you actually find when you were digging around?

Anna: I did find a number of different surveys and in particular one from 2016 where there'd been a relatively small-scale survey of 500 employers and employees. And that was really focused on accountancy, banking, finance. And actually there were quite a lot of responses from employees that they were suspected or known to have been taking illegal substances during or outside work - but obviously we are focused here on during work - and that figure was something like 23% of those who were surveyed, which struck me as being not high, but within those sectors, perhaps where you would expect to see that.

There's a report from Bupa back in 2023, where they found that almost 10% of people aged between the ages of 16 and 59 reported using Class A drugs in the previous year. And we might expect perhaps that isn't actually happening in the workplace, but of course drugs have a lasting effect, which means that people could, of course be attending work and that could be under the influence of the drugs they've taken perhaps recreationally. And interestingly, there's new research published by Bupa back in May 2025. They surveyed just over 1500 employees and 1500 employers, and they found a concerning rise in addiction in the workplace. Just over one in three employees who were surveyed, admitted to either using or witnessing substance use or addictive behaviours during working hours.

Jonathan: Sticking with that point, if I may, of 'under the influence', that's quite a tricky concept, isn't it? How do we measure under the influence in the workplace?

Anna: I think there are a number of different approaches. I think you have the need for people to be vigilant when they are watching the behaviours of their staff to see whether they're behaving perhaps in a slightly erratic way. It could be that somebody's actually exhibiting symptoms. They might have dilated pupils for example, but certain physical signs that might suggest that that person actually is under the influence of drugs. But we do need to be really mindful because there are some occasions where what's being exhibited actually isn't the effect of a drug at all. It might be somebody who has a very specific medical condition, for example. Real caution here for employers.

Jonathan: Is it measurable do you think, being under the influence? Is there an objective test? So, for drunk drivers, of course we have however many milligrams of alcohol per whatever it is, of blood, et cetera. What about other drugs? Is there a test that can show the extent to which people are impaired?

Anna: Yes. Well, there is, and there are various organisations that actually offer those services, so they will carry out testing. And you might recall there was a particular exchange with the client you were talking about earlier where we asked various questions of their testing facility just to make sure that the provider was acting in a way that would allow them to then enforce their policy.

Jonathan: And what about so-called smart drugs? What's their impact in the workplace?

Anna: Well, these are drugs where it's purported that they actually boost concentration and memory and may improve productivity at work. Which obviously helps employees work harder for longer. And that was the results for survey carried out by the Telegraph back in 2018.

But I think what is really interesting is that there are lots of UK adults, including students - those people who are going to become the workforce of the future - who take these smart or study drugs to gain intellectual edge. And in the course of my research, what I found was that 44% of people responding to one of those surveys said that they'd first tried smart drugs while actually in the workplace.

Jonathan: Wow. Okay. And just sticking with that then for a moment, people are going to take drugs in the workplace. Why are they doing that? What are the reasons?

Anna: I think there are quite a lot of factors that contribute. I think we have workplaces, particularly where you are looking at professional services or the professional white-collar workplace, which are really high pressured. And people need to have stamina. They need to have resilience and some of these drugs can actually assist in relation to people's performance in that way. So, if you've got people who are expected to work in a very competitive work environment, who are expected to work really long hours, then you may well see that drug and alcohol usage increases because it keeps people going.

And there's another really interesting reason that comes out of that 2025 Bupa survey. The survey reported that those who've battled addiction said that stress was actually a major driver with almost half of the employees who were surveyed, saying that they turned to addictive behaviour as a way to cope with professional stress. And around 46% of those who were surveyed cited work-related pressure as a continuing factor. And in addition around 40% of those surveyed said that actually workplace culture played a part and was fuelling these sorts of behaviours.

Jonathan: Well, those are the sort of pressures that might be said to come from your working environment - the pressure to perform. That certainly hasn't generally been my understanding as to why people take drugs. What about the old reasons for people taking drugs? Are those still around? Are they still a thing?

Anna: So, I think there are other factors that contribute to this issue. The first I think is availability and obviously alcohol is very readily available and, of course, legal.

And then in relation to other drugs, I think you have issues around social supply. So, friends and associates who are supplying people, supply through social media, and increasingly supply through the dark web. And then of course we've heard so much about county lines drug supply. So, drugs are there, and people are accessing them. And one of the reasons they're accessing them is the whole issue around affordability. So, we know from a 2020 report, by Dame Carol Black, that around 37% of powdered cocaine users had a household income of £50,000 or more. So, when you are talking about the professional white-collar workforce where perhaps people are better paid, these are drugs which they can afford.

Jonathan: This is sounding like a really interesting and challenging landscape for employers. There's lots of ways to access drugs, drugs are becoming more affordable, what does social acceptance look like nowadays?

Anna: I think it's still the case that cocaine is still seen as being an acceptable drug. Some of the commentaries I came across suggested that for some people they don't even consider cocaine to actually be a drug, which is quite shocking. And then if you look at ketamine, there's so much in the press now about ketamine usage. A whole generation being called 'generation K' - so younger people who are taking ketamine at school and then in through university. And of course, it was a fringe club drug, which didn't have a great reputation. But now it seems that abuse of ketamine is very much on the rise. And it was reported back in 2024 that Britons took enough ketamine to, in fact, tranquilize two million horses. Which would suggest that this is a really big issue and the Government are looking at reclassification of ketamine because such is the concern about its abuse.

And we also know that misuse of prescription opioids is very much on the rise. And we've seen that, in the US there's been an absolute epidemic, and the concern is that's coming here. And that's confirmed by research by the University of Bristol which was published last year, which found that one in eight people in the UK was at risk of prescription opioid misuse.

Jonathan: Okay. I mean, two million horses, these are quite scary numbers. But let's just stick with Ketamine for a bit, because frankly Anna our generation didn't grow up with ketamine. I think all the other drugs that we've been talking about, with the exception of smart drugs perhaps have been around. But just tell me about the impact on productivity and performance of ketamine.

Anna: Ketamine is one of those drugs that stays in the system. So perhaps, I said earlier about recreational use, you come back into the workplace on a Monday morning. If you've taken ketamine perhaps on the Sunday, you may experience loss of memory, disorientation, impaired judgment - which obviously in the professional workplace is particularly material. You may be in pain, you may be aching, you may feel anxious, you may be clumsy – perhaps clumsiness isn't such an issue in the professional workplace. But there are a myriad of side effects to ketamine, which have the potential to have a really material impact on your performance, on your attitude to risk, on your behaviours in the workplace. So, these are really, in my mind anyway, very concerning trends when we know that this is a drug that is definitely on the increase.

Jonathan: And the issue here is going to be that some of the things that you've talked about with that generation is weekend drugs on Monday morning, isn't it? The people who've taken drugs on Saturday and Sunday, and then what state might they be in when they come into the workplace?

Anna: Absolutely. Yes. Impaired behaviours, impaired judgment. Also presenting actually financial risk to the employer. As your drug use increases, if you become really highly dependent, then that becomes a habit that you need to fund. And there's a real concern there that people are on record saying that they've done something illegal to actual fund their drug habit. So, we know that this is a material risk for employers, particularly if you've got people in positions of trust.

Jonathan: What's the data on that? What are the stats?

Anna: Well, that 2016 survey I mentioned - I know it's quite old, but again, there's a dearth of data - reported that 23% of the employees who'd been surveyed said that they had done something illegal to fund their drug use, either inside or outside work. And it's the piece I think there around inside work, it makes you wonder what exactly those people have been doing. Are they embezzling the employer, are they stealing from the employer to fund the drug habit? The detail isn't there, but I think it is a considerable concern for employers.

Jonathan: It's a fairly alarming picture of the scale of drug use, of the problems associated with drug use, both in terms of the physical and mental impairment of the users, and also the possible financial consequences for the individual and therefore their employer.

So, if I'm that employer, after hearing that I might want to say, "right, that's it, we have a zero-tolerance policy on drugs. If there's any evidence that you have been using drugs inside or outside of the workplace, then that's gross misconduct and we will dismiss you." That might be my reaction, but it's a bit more complicated than that, isn't it? There are legal risks for employers of going down that route.

Anna: Most definitely. If you're talking about conduct outside the workplace, it's always a challenge to address that because there needs to be some degree of connection. There needs to be potentially some impact on the individual's ability to actually carry out their work. Or there may need to be, for example, publicity so that the employer can say, you're bringing us into disrepute. And if you can't find some basis on which to find that that individual is no longer suitable to work in your workplace, then you are going to potentially really struggle.

I do wonder from the lack of commentary out there the lack of case law in relation to drug taking outside the workplace in a professional working environment. So, we're not talking about people working, for example, if social workers or in safeguarding type roles, whether actually the lack of case law might indicate that settlement agreements are reached and that people quietly leave the workplace. So the employer avoids the adverse publicity risk, loss of confidence in their business, and the individual leaves the business having waived their rights to bring any claims against the employer.

Jonathan: So, what would a good employer be doing if they were suspecting that someone's performance was impaired in the workplace because of drugs?

Anna: I think we see this actually also with the clients that we work for in those health and safety critical environments, is that the aim is that they should be supportive. This should be about helping people. According to that 2025 Bupa survey, almost half of the employees they surveyed said they would rather hide an addiction than discuss that addiction at work. And 43% had avoided medical or professional support altogether due to fear of workplace repercussions. So encouraging people to come forward recognising that they have an issue with addiction seeking support, committing to work with the employer to help them help themselves. So, for example, entering into an agreement where they agree to be tested on a regular basis to make sure that they're not relapsing. And I know that from the discussions we had with the client you were talking about at the beginning of our podcast, Jonathan, they were very much about not disciplining or punishing an employee who came forward to disclose that they had an issue. There would be a very supportive approach adopted with programmes in place to help those employees. And I think that really ought to be the starting point.

Jonathan: I could see that it ought to be the starting point. At what point does this tip over into something where you say, this workplace isn't for you anymore?

Anna: I think if you have determined that the addiction is just so wholly inappropriate in your workplace. If you have a regulator, for example, who itself takes a zero-tolerance approach to this sort of issue, then you know you may find yourself as an employer on the other side of the line, where you can be supportive to a point but ultimately you may still be in situation where an exit is necessary, however that is facilitated.

Jonathan: What do we do if the employee says, "I'm an alcoholic, or I am a drug addict"? To what extent does the disability protections under the Equality Act come into play here?

Anna: Well, that's quite interesting. because I think the knee jerk reaction would be it's addiction, it's not covered because it's excluded/exempted from the Equality Act when you're starting to look at disability. But I think it's really dangerous to take that approach because if somebody has a physical condition, for example, that arises as a result of an addiction. So perhaps you've got cirrhosis of the liver and it's so severe that it actually qualifies as a disability - that person still has protection.

And the other thing to bear in mind is it's really important to look closely at timescales. Because if you're aware that somebody had a problem but they no longer have that addiction - as was the situation in a case called Charlick. Then it's not going to be a good defence to jump on the exemption and say, 'we have a get out of jail free card here your claim is not going to succeed because you're not disabled…'

In that particular case, the employee in question had, in fact, I think it says in the judgment, 'got his life together' and was no longer addicted at the time he resigned and his claim that he was disabled was accepted by an employment tribunal judge at a preliminary hearing. I've seen no further follow up to that case, so I suspect it was settled at that point.

Jonathan: What was the disability in that case? Remind me.

Anna: He had depression, he had anxiety, but because he wasn't addicted at that point in time, the employer couldn't rely on the exemption. So, he was disabled, and so the employer wasn't able to say that the Equality Act protections didn't apply to him, and he got protection under the Equality Act, and it was a case that his past addiction couldn't be relied on by the employer.

Jonathan: So that's really interesting. So, he's suffering from depression and anxiety at the time when he says the discrimination occurred, it was known that he used to be an alcoholic, he used to be a drug addict. But because he was 'clean', the employer then couldn't rely on the exemptions, they had to treat the anxiety, the depression on their face as it were. They couldn't look back and associate it with the addictions, which the evidence was he had recovered from.

Anna: Yes. And he'd had anxiety and depression for his whole life. But there was just this period before he started his employment where he'd had this addiction, but it wasn't enough. The tribunal found that he was disabled.

Jonathan: So, the overall message there is clear, isn't it? As you said, this is not a get out of jail free card.

Anna: No, not at all.

Jonathan: Just because somebody is or has been an alcoholic or a drug addict doesn't remove them from the Act's protections altogether. You have to look at the state you find them in at the relevant time.

Anna: Absolutely. Yes.

Jonathan: Well, that's, if I may coin a phrase, sobering. And what we have are employers faced with growing drug use in society with new kinds of drugs with which they are not familiar. You and I are a good example of that. We are suggesting that the approach doesn't change, that employers come at this from a supportive basis in the first instance, recognising that there might be times when a line has to be drawn, but being very careful in how that line is drawn, particularly around issues of disability.

Anna: Absolutely.

Jonathan: Anna, thank you very much.

Anna: Thank you, Jonathan.

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