European Court of Human Rights rules on drug testing

In March 2004, the European Court of Human Rights (ECHR) gave its decision in case brought by a Swedish office cleaner employed at a nuclear power plant, who claimed that she should not have to be subjected to drug testing at work. The ECHR ruled the applicant's case to be inadmissible, thus upholding the employer's right to conduct drug tests, as the Swedish Labour Court had done earlier in the same case.

The European Court of Human Rights (ECHR) recently ruled in a case (application no.46210/99) related to the drug-testing of employees at a nuclear power plant in Sweden.

Background

The complainant, Inga-Lill Wretlund, was employed as an office cleaner at a nuclear power plant in Oskarshamn, Sweden. She was assigned to clean the offices at the plant and was not working in an area where she might be subjected to radioactivity, thus not being obliged to undergo any radiological examinations under the Swedish safety rules for nuclear plants. Ms Wretlund was a member of the Electricians’ Union (Svenska Elektrikerförbundet), which had 170 members working at the plant. The employer OKG AB, a private company that owns the plant, is a member of the Energy Companies’ Employers’ Association (Energiföretagens Arbetsgivareförening).

The sectoral collective agreement for the power plant sector (Kraftsverksavtalet) did not provide for drug or alcohol tests among the employees. In 1991, a drug policy programme was agreed upon between the employer and the four trade unions at the Oskarshamn plant. All job applicants were to undergo a drug test in connection with their health examination before they could be employed. In 1993, it was proposed that employees already in employment should also undergo tests. OKG and three of the four trade unions concluded a local agreement that introduced compulsory drug and alcohol tests for all the members of the three unions at the plant. OKG intended to conclude a similar agreement with the fourth union, the Electricians' Union. However in December 1993, this union declined to sign such a deal. The company nevertheless decided that all employees should undergo drug and alcohol tests. Ms Wretlund refused to be tested.

In 1996, the Electricians' Union took OKG and the Energy Companies’ Employers' Association to the Labour Court (Arbetsdomstolen) seeking a declaratory judgment that the applicant, Ms Wretlund, was not obliged to participate in the drug and alcohol tests at the nuclear plant. The union argued that the tests were in breach of Article 8 (Right to respect for private and family life) of the Council of Europe's , the collective agreement in force at the plant and the Secrecy Act (Sekretesslagen, 1980:100). The trade union had several arguments for its case, including that there was nothing mentioned in the employee's individual employment contract about drug tests, and that the union had not signed the local agreement on drug testing. Also, the union alleged that testing was unjustified with regard to the cleaner’s tasks in the office at the nuclear plant.

The Labour Court found on 26 August 1998 (in case no.97/1998) that Ms Wretlund was obliged to participate in the drug testing but not in the alcohol testing (). The Court argued that a general prohibition against drug testing could not be derived from the right of respect for private and family life under Article 8 of the Convention. The Court stated that in certain circumstances, however, such testing might be incompatible with the Convention and therefore contravene Swedish law. Key factors in assessing this might be the employers’ justified interest in carrying out drug tests, the degree of interference with the individual’s integrity and the way in which the testing was performed.

In balancing the interests of the company and the individual, the Court stated that running a nuclear plant was subject to high safety and security standards imposed by the relevant public authorities. The Court also noted that OKG was under an obligation to take measures preventing sickness and accidents at work under the Work Environment Act (Arbetsmiljölagen 1977:1160). The Labour Court concluded that OKG had a strong justified interest in carrying out the tests in order to maintain a drug-free environment. Drug testing was conducted at all Swedish nuclear power plants.

Looking at the interests of the individual, the Court considered that the possible infringement of the individual’s integrity caused by the testing procedure as such was of very little significance. Overall, the Labour Court found that the office cleaner in question was obliged to submit to the drug testing. However, the Court considered that there was a fundamental difference between the use of drugs and the use of alcohol, in that the former was illegal and the latter was legal and socially accepted.

Ruling

Ms Wretlund applied to the European Court of Human Rights. On 9 March 2004, the Court ruled that the case was inadmissible.

The applicant complained that her obligation to undergo drug testing, as laid down in the Labour Court judgment, interfered with her right to respect for her private life under Article 8.1 of the European Convention. She claimed that there was no Swedish legislation giving employers the right to conduct drug tests on their employees and that, consequently, the Labour Court's judgment had no basis in law. Thus, the interference in the case was not 'in accordance with the law' as required by Article 8.2 of the Convention. Further, even assuming that the interference was lawful, she argued that the compulsory drug test could not be considered a justifiable measure having regard to her duties as an office cleaner.

The ECHR noted that applicant and other employees of OKG were informed of the drug policy programme, including the drug testing. It had not been claimed that the information given was insufficient. The obligation to submit to drug testing did not follow from legislation - however, the ECHR observed that, in accordance with a long-running Swedish tradition, the social partners mainly regulate employment-related issues through collective agreements. The employer’s right to manage and organise the work was a principle agreed upon by the parties, and the Swedish Labour Court had established that this right constituted a general legal principle. According to the case law of the Labour Court, an employer may have the right to carry out control measures in relation to its employees, as part of its right to manage and organise the work . Examples of such control measures include drug and alcohol tests

The ECHR thus found that the measure challenged by the applicant had a sufficient basis in Swedish law and thus was 'in accordance with the law' within the meaning of Article 8.2.

The ECHR also concluded that the operation of a nuclear power plant obviously required a very high level of security and that it was necessary to apply various procedures, including control measures. It was evident to the Court that the use of drugs among the employees might jeopardise the security at such a plant. A drug policy programme involving regular drug testing of staff must be considered as justified.

As to whether the implementation of the testing programme in question was reasonable and whether due regard had been given to the protection the applicant's personal integrity, the ECHR noted that: the tests performed at OKG were carried out in private; the test results were disclosed only to people involved in the drug policy programme; and the testing was performed on all employees at OKG. In the light of these circumstances (and several others), the ECHR found that operational considerations at OKG relating to the public safety and the protection of the rights and freedoms of others, in particular other employees, justified the control measure in question. It further found that the Labour Court, in its judgment in August 1998, struck a fair balance between that interest and the applicant's interest of protecting her personal integrity. In sum, the ECHR considered that there was no evidence which could lead to the conclusion that the control measure or the way it was carried out was disproportionate. Accordingly, the assumed interference with the individual's rights in the case was 'necessary in a democratic society' (as required by Article 8.2 of the Convention) for the abovementioned aims. The ECHR thus rejected the application as being manifestly ill-founded.

Commentary

In March 2002, a government-appointed commissioner submitted a proposal for a new law on the protection of personal integrity and privacy in working life (). Under the proposal, the protection of personal integrity would be strengthened in two main areas. One of these concerns medical examinations and drug tests. At present there are no cohesive rules in Sweden on the protection of personal integrity in working life. The aim of the new legislation proposed by the commissioner, which would apply to both the public and private sectors, is to strengthen the protection of the integrity of current and former employees and job applicants.

The commissioner proposes a general prohibition on employers processing personal data on employees’ health or use of drugs, but with an exception: situations when it is necessary for the safety of the employee, other employees, the workplace or the general public for the employer to ascertain whether employees are capable of carrying out the work tasks.

The proposed rules are well in line with the ECHR's findings in the Wretlund case, as well as with Swedish Labour Court case law. However, the proposal does not contain any rules on a possible obligation on employees and jobapplicants to undergo compulsory medical and drug tests. There is, however, currently some consensus about how to balance the risks to others and the inconvenience to the individual, supported by the March ECHR ruling.

At the time of writing, August 2004, the government has yet to indicate what legislative steps will be taken in this area in future

In its August 1998 judgment on the Wretlund case, the Labour Court made a distinction between alcohol tests and drug tests, only obliging the cleaner to take drug tests. As for alcohol tests, the judges argued that the use of alcohol was legal and socially accepted. The use of drugs, on the other hand, was illegal, which made a fundamental difference. The issue of alcohol testing was thus not included in the case referred to ECHR. One might ask if it is not also important to consider the risks an employees’ abuse of alcohol might pose to employees in the same workplace. (Annika Berg, Arbetslivsinstitutet)