In an article first published by Thomson Reuters Accelus, Managing Associate Annabel Mackay looks at the difficult issue of drug and alcohol abuse outside of the workplace and considers a number of key issues including the potential impact on the working relationship, particular issues for financial services employers and the need for a fair and consistent procedure.

Drug and alcohol abuse outside work is a complicated area, which may fall within an employer's conduct or capability policies, depending on the circumstances.  Some employers are prepared to support their employees through rehabilitation and counselling, while others will treat drug use, whether inside or outside work, as a disciplinary matter. There are also cases where employers have relied on a breach of the implied term of trust and confidence to justify a dismissal for conduct outside work based on "some other substantial reason".

 Whenever an employer decides to dismiss, it is important that the reason chosen aligns with the procedure adopted. In every case, an employer should avoid rushing to judgment and should allow proper time for the situation to be investigated and for the employee to explain their position.

Drug and alcohol abuse outside work may only come to an employer's attention where an employee is charged with or convicted of a criminal offence. The ACAS Code of Practice on Disciplinary and Grievance Procedures reminds employers that being charged or convicted of a criminal offence is, "not normally in itself reason for disciplinary action. Consideration needs to be given to what effect the charge or conviction has on the employee's suitability to do the job and their relationship with their employer, work colleagues and customers."

Impact on the working relationship

This reflects the Employment Appeal Tribunal's decision to uphold a tribunal's order for the reinstatement of a teacher who had been dismissed after being convicted of possessing and cultivating a small amount of cannabis. The Employment Appeal Tribunal noted that the teacher was of high ability, exemplary character and that the main part of his job involved training other teachers.

The review of the authorities revealed that an employer had to show a serious and genuine connection between the nature of the conviction and the workplace, for example the impact on fellow employees, whether there would be a danger to others (such as children) and whether the employer's reputation would be seriously and adversely affected.

Each case must be considered on its own facts. In Mathewson v R B Wilson Dental Laboratory, the dismissal of a dental technician for possession of cannabis was fair because the employer was concerned about the impact his conduct would have on younger employees. The Employment Appeal Tribunal also found that the dismissal of a forklift truck driver after a conviction for possession of cannabis and drunk and disorderly conduct outside work was fair. The individual had two previous convictions and the employer was concerned about a future incident taking place at work. There are other examples of fair dismissals where employers in aviation and manufacturing sectors could not afford to take the risk of drug-taking outside work affecting (or being perceived to affect) an employee's ability to perform their role at work.

Financial services

In a financial services context, the impact that the charge or conviction will have on the employee's ability to perform their role and the potential for the employer's reputation to be damaged are usually the most relevant considerations.

The employer must be satisfied that it can tie the employee's behaviour to a breach of its disciplinary policy. It helps if the employee has acknowledged their agreement to the terms of a policy that has been well-publicised within the workplace, and if the consequences of breach have been made clear.

The policy should contain a non-exhaustive set of circumstances that will constitute grounds for termination, including conviction for a criminal offence, whether committed inside or outside work, and damage (or potential damage) to the employer's reputation. In cases where an employer relies on damage to reputation, it must have genuine grounds for the belief that its reputation may be damaged. For example, in a social media context, an employer failed to show that a relationship with a key client was affected by an employee's Facebook posts, with the result that the employee was found to have been unfairly dismissed (Whitham v Club 24 Ltd t/a Ventura).

In the absence of a clear policy that extends to conduct outside work, a conviction for drug or alcohol abuse will not automatically warrant dismissal. Nor will the employee automatically fail the fit and proper test for approved persons. FIT 2.2.2 states: "A person may have been convicted of, or dismissed or suspended from employment for, drug or alcohol abuses or other abusive acts. This will be considered only in relation to a person's continuing ability to perform the particular controlled function for which the person is or is to be employed."

If the Financial Conduct Authority decided that the individual could no longer perform their controlled function, the employer would need to check its contracts and policies to ensure that this justified dismissal rather than redeployment.

Fair procedure

Even where the employer is satisfied that the criminal charge or conviction has the potential to affect the employee's ability to do their job, their relationship with co-workers and clients or their employer's reputation, a fair procedure must be followed. As with all disciplinary matters, an employer needs to gather the facts and investigate properly.

An employee needs to know the allegations against them and have a chance to state their case. The employee should also be able to put forward matters in mitigation, such as their length of service, good character and unblemished disciplinary record.

Consistency

An employer should be consistent in the approach it takes to drug and alcohol abuse outside work. For a disciplinary policy to carry any weight, it must be followed in practice and applied to all categories of employee. The employee's seniority, status and function will be relevant to the severity of any disciplinary sanction rather than whether disciplinary action is taken in the first place.

An employee facing a disciplinary charge may attempt to defend their position by pointing to misconduct by other employees. Those allegations should be investigated carefully. Where an employer is investigating based on the word of one employee alone, efforts should be made to obtain specifics so that the allegation can be put to the other employee. An employer who dismissed an employee based on rumours of cannabis use, without reliance on particular incidents, was unable to defend an unfair dismissal claim.

Timing

As with all disciplinary matters, an employer must not act precipitously. Although an employer does not have to wait until the outcome of any criminal proceedings before taking action, it must be satisfied that it has carried out a reasonable investigation and given the employee a proper opportunity to put their case. The ACAS disciplinary guide explains that if an employee refuses to cooperate with an employer's investigation, the employer may reach the point where it has to inform the employee that action will be taken based on the information available.

Policies are vital

When deciding on the sanction, the employer must consider whether dismissal is appropriate, or whether any alternative (such as demotion) would suffice. In that regard, the employer's disciplinary policy remains vital, particularly where the employer's expectations extend to conduct outside work. An employer can put itself in the best position to defend an unfair dismissal complaint by having clear disciplinary policies that are applied consistently.