As the season of Christmas parties and festivities gets underway then over indulgence, long and boozy lunches and hangovers become the issue of the day. However, this is not simply a seasonal problem; employee alcohol and drug misuse can often be a long-term concern for employers especially when such behaviour affects employee productivity and workplace relationships.
The statistics speak for themselves with a recent survey of 500 organisations by the Chartered Institute of Personnel and Development revealing that 40% of employers questioned said alcohol misuse was a “significant cause” of employee absence and poor performance levels and one third of organisations reported that drug abuse also had a similar damaging effect within the workplace.
In light of this pervasive problem, we have compiled some useful tips and procedures to assist you in dealing with this complicated and sensitive area. With some careful thought and planning it is possible for employers to put a range of policies in place to mitigate the negative impact of substance abuse.
The Law relating to Alcohol and Drug Misuse
The consumption of alcohol and taking of recreational drugs is generally thought to be a personal matter if the employee engages in such activities in their own time outside of work hours and off work premises. However, the growing problem of alcohol and drug misuse does become an issue for employers when it begins to have a detrimental effect on the workplace, leading to increased absenteeism, lower productivity, health and safety issues and a decline in workplace morale. The issue is particularly pertinent if the employer’s reputation is damaged as a result of their employee’s behaviour.
Employers have a duty of care both at common law and under the Health and Safety Act 1974 to safeguard the health, safety and welfare of their employees at work. The employer may be in breach of this duty and criminally liable if he knowingly permits an employee to carry on working whilst intoxicated by alcohol or drugs.
In certain areas such as the transport industry, specific legislation is in place (The Transport and Works Act 1992) which makes it a criminal offence for employees working on railways, tramways and other guided systems to be working whilst under the undue influence of drink and drugs. The operators of transport systems would also be guilty of an offence unless they could show that “all due diligence” was carried out in order to prevent an offence occurring.
Under The Misuse of Drugs Act 1971, it is an offence for occupiers of premises (including employers) to knowingly allow controlled drugs to be produced or supplied on their premises or to permit cannabis/opium smoking on the premises. Therefore, it is important for employers to take alcohol and drug abuse very seriously as a failure to do so can incur heavy penalties.
The Importance of Implementing a Drink and Drugs Policy
Employers are often unsure how to deal with an employee who appears to be suffering from alcohol and/or drug misuse: should the misuse be treated sympathetically as a health issue or as a misconduct matter leading to disciplinary action? The answer will clearly depend upon the individual facts of the case and the organisation in question, but as a general rule it is advisable for employers to have a clear written alcohol and drugs policy, which sets out the company’s procedures and is applied consistently across the firm. The policy should ideally be contained in a staff handbook or pinned up on notice boards and the policy should clearly set out what the penalties are if employees breach the policy.
There are a number of issues which an employer should bear in mind when drafting an alcohol and drugs policy. The policy should be tailored to the organisation and the type of work they do. For example, companies who employ workers to drive or operate heavy machinery should consider implementing a total ban on alcohol whereas a company who employs mostly office workers may allow moderate social drinking as part of the work culture.
The policy should detail how the company will deal with employees who are suspected of alcohol and/or drug misuse. The matter should initially be dealt with on a relatively informal basis. A meeting should be arranged to discuss the employee’s problems and how it is affecting their work performance. A medical examination and report may need to be carried out and the company may reserve the right to refer the employee to counselling/rehabilitation if appropriate.
If there is no improvement in the employee’s conduct/performance then the policy should deal with the disciplinary position. Drinking or taking drugs either in or out of work may be a potentially fair reason to dismiss an employee on the grounds of capability or conduct. If dismissal is considered then the company’s dismissal procedures and the statutory dismissal procedures must be followed. It is worth noting that addiction to and/or dependency on alcohol or any other substance is not in law a “disability” giving the employee protection under the Disability Discrimination Act 1995, but employers would be unwise to dismiss an employee without considering the serious effect drink and drugs can have on an employee’s health such as depression, which in itself could amount to a disability. To Test or Not to Test: that is the Question
An employer who is considering imposing an alcohol and drugs testing policy on all employees must take into account a number of factors before implementing the policy. The testing procedure is likely to compromise the employee’s privacy and will in all likelihood be quite an intrusive experience often involving breath testing for alcohol and/or testing urine, hair or saliva for other psychoactive drugs. Therefore, the employer must be able to justify the testing as a necessary measure.
The Combined Employment Practices Data Protection Code published by the Information Commissioner’s Office sets out guidelines as to how and when drug and alcohol testing can be legitimately justified. It recommends that the tests should be as unobtrusive as possible and carried out by an independent medically trained person, who interprets the results in the strictest confidence.
One of the areas where random testing can be justified is in jobs where health and safety is an issue. Therefore, railway workers, pilots, police and the armed forces are all subject to random testing. Testing may also be justified in jobs in which the public vest their confidence for example teachers, doctors, nurses, MP’s and also in jobs which involve a high financial risk dealing with large amounts of client’s money.
An alternative to random testing is post incident testing where there is reasonable suspicion that drug or alcohol misuse is a factor in the poor performance of the employee. The employer should make reasonable investigations before asking the employee to consent to the test. Hand-eye coordination and response time tests could be used as part of the investigation process to help the employer decide whether the employee is able to perform their job and thus whether a formal alcohol/drugs test is required.
The employer must always obtain the employee’s consent before carrying out the test otherwise the test could amount to assault and battery at common law. If the employee refuses to take a test then the employee may be able to draw on adverse inference from this refusal, which may in the right case be used to justify a dismissal. However, an employer must ensure that there is at least some link between the alcohol/drug taking and the employment otherwise the dismissal will not be deemed fair.
It is also sensible for employers to include within any policy a provision dealing with ‘positive’ test results. The policy should clearly set out how the company shall treat such results and whether sanctions will be imposed regardless of when and where the substance misuse took place.
Tolerance or Zero Tolerance
A number of employers especially in the public and transport sector have placed a greater emphasis on rehabilitating rather than disciplining employees with substance misuse problems. London Underground, for example, promotes the rehabilitation of employees who are addicts. Transport workers who confess to an addiction are sent for treatment at a number of clinics and then closely monitored on their return to work. It is believed that this policy encourages employees to come forward and seek treatment because they are not afraid their confession will result in automatic dismissal. Employers should consider whether it is more beneficial to the company in the long term to rehabilitate employees back into the workforce rather than dismissing them.
For further advice on alcohol and drug misuse, the Conciliation service ACAS, publish a free Health and Employment Advisory Booklet, which is accessible on the following link http://www.acas.org.uk/index.aspx?articleid=693 This is a useful booklet which deals with pertinent issues including guidance for employers, who are considering drawing up a policy on alcohol and drug misuse at work. The underlying message for employers is to implement and/or formalise their alcohol and drugs policy setting out clearly the company’s procedures for dealing with this issue. The policy should be effectively communicated to the workforce and applied consistently across the firm.