“Legal highs” and the Psychoactive Substances Act 2016: what employers need to know

The Psychoactive Substances Act 2016 (the Act) will come into force on 26 May 2016. You can find government guidance and resources on the Government’s website.
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What does the Act do?

The Act makes it a criminal offence to produce, supply, offer to supply, possess with intent to supply and import or export psychoactive substances. The main thrust of the new law is to allow the police and local authorities to shut down shops and websites that currently trade in ‘legal highs’.

The law is targeted at the supply and production of legal highs. Unlike pre-existing drugs legislation, the Act does not criminalise individual users. Simple possession is not a criminal offence, except in a custodial institution. There are also protections for certain ‘excluded activities’ which cover healthcare activities and legitimate scientific research to develop new medicines.

The new offences will work alongside the existing laws around controlled drugs – such as heroin, cocaine and amphetamines. Police will be able to stop and search individuals, vehicles, vessels and aircraft and (with a warrant) enter any premises to seize substances and/or evidence.
Which substances are covered?

The Act covers any substance which is deemed to be psychoactive; that is, any substance intended for human consumption which is capable of producing a psychoactive effect. This is defined very broadly in the Act as any affect which, by stimulating or depressing the central nervous system, affects a person’s mental functioning or emotional state.

This wide definition has been one of the more contentious aspects of the Act. The Government’s own drugs adviser, the Advisory Council on the Misuse of Drugs, previously warned that it was too broad and unworkable in practice – it captured common substances such as caffeine, nicotine and, perhaps surprisingly, even certain foodstuffs like nutmeg.

To help address those concerns, the Act provides for a number of exempted classes of substances which will not be regulated by the new law:

Medicinal products;
Controlled drugs (as these are already illegal under the Misuse of Drugs Act 1971);
Alcohol;
Caffeine, nicotine and tobacco products; and
Foodstuffs (unless supplied primarily for their psychoactive effect).

The Government is free to add or remove items from the list of exempted substances. The intention is that this will allow new medicines – which have been tested and deemed safe – to be exempted in the future.
Sanctions

The penalties for producing, supplying or offering to supply psychoactive substances are up to seven years in jail, an unlimited fine, or both. The law also gives wide powers to the police – and in some cases local authorities – to obtain a new raft of civil sanctions:

Prohibition Notices and Prohibition Orders – these require the subject to stop carrying out activities prohibited by the Act and/or hand over stocks of psychoactive substances.
Premises Notices and Premises Orders – these can be directed at employers and landlords and their severity can range from requiring the employer/landlord to take all reasonable steps to prevent prohibited activities taking place on their premises, to imposing a complete ‘access prohibition’ which effectively closes down their premises for up to six months.

These civil sanctions can be imposed as an alternative or in addition to the criminal offences. Breach of one of the Orders is itself a criminal offence punishable by up to two years in jail, an unlimited fine, or both. In addition, following amendments to the original Act, supplying or offering to supply psychoactive substances to a child will result in automatic inclusion on the Children’s barred list.

What does this mean for employers?

To ensure that the issue of misuse of drugs and alcohol in the workplace can be addressed, many employers already operate drug and alcohol policies. This is particularly the case where the organisation is involved in health and safety critical activity such as in the rail, aviation, construction or mining industries. Those policies establish the rules which bind employees and allow employers to ensure that employees are treated consistently and fairly in the event of breach. Such policies are also often implemented as a supportive measure where drug and alcohol use are seen as an illness.

What are the legal obligations on employers?

The Health and Safety at Work etc Act 1974 (HSWA) requires employers to ensure, so far as is reasonably practicable, the health and safety of all employees while at work. Employers also have a responsibility to ensure that others are not exposed to any risk as a result of their business activities or their employees’ work related actions. In addition, under the Misuse of Drugs Act 1971, employers must not knowingly permit use of controlled substances on their premises. This includes employees who drive for work – under the Road Traffic Act 1988 and Transport and Works Act 1992.

Although the law does not ban possession and use of legal highs, an employer is unlikely to be found to have discharged its duties under the HSWA if it does not take steps to assess the risk of psychoactive substances being used in the workplace and subsequently implements appropriate control measures. For example, if an employee under the influence of legal highs causes harm to themselves or others while at work, an employer might be found liable for those actions if they failed to take reasonable measures to control drug use at work.

In addition, imagine the consequences of your premises being shut down by the police and the press interest if a premises notice or order was issued, if it were found that an employee had been supplying psychoactive substances while at work. So it’s not just the risk of accident or injury present if the employee has indulged, but also the risk to the reputation and operations of the business as a result of supply within the workplace.

What should employers be doing now?
Review

The introduction of the new prohibition on legal highs is the latest development which will impact on existing policies and risk assessments.

Employers should review their Drug and Alcohol or substance misuse policy and any relevant risk assessments to ensure they are sufficiently robust to cover the use of “legal highs” or psychoactive substances and amend where necessary. If no policy or risk assessments exist employers will need to create them.

Employers should also review their Disciplinary Rules to make it clear that examples of gross misconduct include:

Supply or attempted supply of psychoactive substances banned under the Act; and
Being under the influence of a psychoactive substance.

Communicate

The organisation’s attitude to and policy on drug and alcohol use at work must be clear. Any amendments to any existing policy or working practice should be communicated clearly to the workforce. In particular, the expectation of the employer must be communicated to staff together with the consequences of breach. There should also be a robust procedure in place which encourages employees to report any issues.
Testing

Publicise drug and alcohol testing arrangements and ensure these tests will capture substances which are considered psychoactive under the new Act.

Remember, such testing requires the consent of the individual concerned. Ensure that there is scope for a refusal to result in disciplinary action and ensure that the workforce is aware that there may be consequences should there be a refusal. Employers should also take care to ensure that the requirement for testing complies with the ICO’s Employment Practices Data Protection Code – Information about Workers’ Health.
Education

A combination of induction training, refresher training and briefings to employees will ensure employees are aware of:

The harmful effects that legal highs, especially if combined with stress or fatigue, can have on a person’s ability to carry out their role;
Any help and assistance available to staff to encourage them to come forward if they feel that they may have issues with alcohol or drugs;
Any training available on how to spot potential problems and how to report these.

NOT LEGAL ADVICE. Information made available on this website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read.