Published 15th November 2019
This week is alcohol awareness week and we’ve been thinking about what, responsibilities employers have to control the behaviour of employees with regards to alcohol and potential addiction issues.
There is a certainly a difficult balancing act at play for employers: should employers be as supportive as possible, and recognise that substance dependency may be a medical issue, or should employers protect themselves and their businesses by disciplining any alcohol or drug misuse at work?
The legal position
The fact is that employers have a legal responsibility to look after employees’ wellbeing as well as their health & safety. Staff who misuse drugs or alcohol are more likely to take time off, display poor performance and increase the risk of accidents. Employers may be responsible, vicariously, for the negligence of any employees caused by impairment due to alcohol or drug misuse and it is illegal if an employee under the influence of excess alcohol is knowingly allowed to work or drive.
It goes without saying that employers could be acting illegally if they knowingly allow drug-related activities to go on at work but do not act. It is also obviously a criminal activity if the drugs being abused by an employee are illegal; employers should give some consideration as to whether any employee’s drug use will require reporting to the police.
Employers also need to protect all employees equally – in some industries, a zero tolerance approach is a necessity, as perhaps the machinery operated incorrectly could risk severe harm to everyone in the workplace.
TIP: ensure that where there is a zero tolerance policy in place that this is objectively justified and that it is consistent with other policies such as disciplinary policy when it comes to the wording for example – “it WILL result in SUMMARY dismissal” in both policies.
However, employers could also consider (where possible within that industry) whether any serious alcohol or drug issues arising at work are actually indicative of a wider problem, perhaps stress at work or a mental health issue. Is the employee actually suffering from a disability, for which the substance misuse is just a symptom? If so, the employer will have obligations towards that disabled employee.
It is always important for all employers to make a clear distinction between dependency issues and misconduct issues such as isolated occasions of drunkenness at work. Line managers may find a clear policy to be helpful, in terms of how to support employees and when a matter is a disciplinary issue.
We assisted on of our lovely HR clients with an issue where the employee had clearly been self-medicating. First of all this company have mental health first aiders and were able to spot the signs and came straight to us for guidance on what next and how to handle the situation properly.
The employee was a loyal employee of over 20 years’ service, never had any issues with conduct before, but had been found with drugs and alcohol at work.
The signs were that this was very out of character and they knew that something had been going on at home, but he had been reluctant to talk about it.
The employer sat down with him* (didn’t discipline him) and asked him why this has happened. He opened up and explained the reasons which had caused the decline in his mental health and explained he was really struggling and just didn’t want to work anymore. They were able to come to an agreement for him to leave on terms which assisted him but were also fair to the company.
*Every case is unique, so always take advice if you are sure how to handle some of these more sensitive and difficult conversations.
Drug and Alcohol Policies
Regardless of whether there have been any historic issues of their use in an organisation, employers can benefit from having a policy on drugs and alcohol. This should cover:
- What the rules are on the use of drugs or alcohol at work and the disciplinary position
This would outline whether an employer has a zero tolerance approach (and if so, why) and clearly outline the distinction between misconduct (eg. arriving at work under the influence) or where an employer would seek to be more supportive of any possible addiction issues (eg. repeated issues giving rise to the concern of employers and colleagues).
A policy would usually also make it clear what the rules are on social drinking between colleagues or networking. Imogen, a solicitor at Thrive Law, has recently written a piece on networking without alcohol. Inclusive networking is an important stepping stone towards truly inclusive and diverse workplaces.
- Whether the company will undertake any drugs and alcohol screening or testing as part of their policy.
Drugs and alcohol testing is quite a sensitive matter, and our advice is that these type of tests should only be undertaken on a random or automatic basis where the industry or nature of the work requires absolutely no influence of any substances.
In a normal office role, it may be difficult to justify having a random or automatic testing policy. Employers need the permission of employees and should only carry out screening when they have a health and safety reason for testing.
Another consideration in drug testing is that drug screening test results would amount to special category personal data concerning an individual’s health, and therefore would give rise to further GDPR considerations for an employer and how they process this data.
- A statement that the organisation recognises that a drugs problem may be an illness to be treated in the same way as any other illness
Although an employer might have a (justifiable) zero-tolerance policy, the underlying causes of that drug or alcohol use should always be borne in mind. If the substance abuse is caused by (for example) depression or anxiety, that person may be suffering with a disability. If this is the case, then the substance misuse may be behaviour arising out of that disability, for which special consideration should be given to avoid allegations of discrimination.
- Signposting those with addiction issues to organisations which can help
- An assurance of confidentiality, insofar as possible, if an employee asks for any assistance with addiction issues
- Whether the employer will allow sick leave to be taken for any required treatment or contribute towards any required counselling
In the course of our research we found that Drinkaware hosts Drinkaware at work programmes, which are designed to support the wellbeing and health and safety agendas of UK businesses. If you have a specific concern around alcohol use in your workplace, we would advise that you contact Drinkaware directly.
If Thrive Law can be of any assistance in, for example, reviewing or drafting Drugs and Alcohol policies, reviewing any disciplinary matters regarding drugs or alcohol misuse, or providing any general HR guidance in this regard, please get in touch.
Written by Jodie Hill & Alicia Collinson