Staff Matters

The consequences for employers do not simply stop at lost working days and poor productivity; the possibility of an individual sustaining a workplace injury or causing injury to others also has to be taken into account. So how can employers tackle the problem of alcohol abuse in the workplace?

Safety obligations

Employers have a duty under the Heath and Safety at Work etc Act 1974 to ensure, as far as reasonably practicable, the health, safety and welfare of employees. If an employer knowingly allows an employee under the influence of drugs or alcohol to continue working, and his or her behaviour places them or others at risk, the employer could be in a breach of duty and face prosecution or other litigation. If employees attend work with alcohol in their bloodstream, it can affect performance, morale and their relationships with colleagues.

All employers should have a clear, written alcohol and drugs policy that sets out what is and is not acceptable during employment hours. Additionally, if the company intends to regard misuse of drink or drugs outside of work as having an in-work implication, this should also be included. For example, a drink-driving offence may result in disciplinary action.

When drafting a suitable policy, employers need to decide on the approach they wish to take in relation to employees with alcohol or drug dependency problems. For example, are they prepared to give them another chance and help them deal with the problem, or, for health and safety reasons, do they wish to take a zero-tolerance approach?

A copy of the policy should be provided to every employee. It is also a good idea to get employees to sign the policy, to confirm they have read and understood it. They should also be fully informed of the consequences of breaching it.

Employees who fail to comply with a drugs and alcohol policy and present themselves for work under the influence may be subject to disciplinary action. Employers should not allow an individual to continue working if they suspect he or she is under the influence. While it can often be difficult to prove an employee is under the influence of drugs or alcohol, a thorough investigation should be undertaken. Employers should endeavour to get witness statements from people who came into contact with the employee at the relevant time. An employee should also be given the opportunity, when he or she is fit and able to do so, to offer his or her version of events.

Contractual testing

Where health and safety issues dictate, some employers rely on the use of drugs and alcohol testing and have a contractual right written into employees’ contracts. However, even if a contractual right exists, an employee cannot be forced to undergo a test, as this could amount to assault and battery. Employees can be encouraged to consent, and should be informed any refusal could result in adverse inferences being drawn.

As a cautionary note, employers need to ensure tests are carried out by trained personnel, and bear in mind tests are not always 100 per cent accurate and reliable.

Where an employee is suspected of underperforming due to drug or alcohol dependency, he or she should be encouraged to disclose such issues. The employee should be reassured the information will be kept confidential, and where the employee is committed to co-operating with a rehabilitation programme, assure him or her the company will assist as far as possible. If an employee’s performance continues to fall below required standards, the employer can follow the disciplinary process.

While alcohol or drug addiction is not a disability, employers must be aware of any associated conditions that may amount to a disability, for example, depression or sclerosis of the liver. If an employee can show he or she has a disability as defined by the Disability Discrimination Act 1995, employers have an obligation to consider making reasonable adjustments.

Although alcohol misuse may be a sensitive issue, it is critical that employers take a proactive stance and tackle any specific issues as soon as possible.