This week is Alcohol Awareness Week, with the slogan that it is a chance to get thinking about drinking. But for many businesses this may have been on their minds for some time in the form of concerns about employees being under the influence of alcohol whilst at work, and for some illegal drugs too.
If this resonates with you, here are three things you will find it useful to know:
- Is being under the influence of alcohol / illegal drugs at work on the rise?
- What is the position regarding addiction and the Equality Act?
- What can I do? Three common workplace scenarios
Is being under the influence of alcohol / illegal drugs at work on the rise?
Government statistics show that more adults than ever in England have been in contact with drug and alcohol treatment services. This could indicate a possible rise of drug and alcohol issues generally, which may also present themselves in the workplace.
In our experience, businesses are seeking advice on these areas more frequently than used to be the case. It could be because managers are more aware of the issues and the need to tackle them, including taking appropriate preventative steps such as clearly communicating policies and expected standards of behaviour in the workplace.
One area which has been attracting media attention recently is the use of medicinal cannabis on prescription. Whilst NHS prescriptions are low due to restrictions, it can be possible for employees in some circumstances to obtain private prescriptions from online pharmacies instead. This is a developing area and one to watch out for as businesses will need to ensure that they act appropriately in relation to such employees and seek advice before taking any action.
Addiction and the Equality Act
Addiction to, or dependency on, alcohol or another substance is generally excluded from the definition of disability under the Equality Act, unless it originally resulted from medically prescribed drugs or other medical treatment. However, employers should be aware that dependency may be connected to another condition that could amount to a disability, such as depression.
Where this may be the case, employers should avoid assumptions, take care not to discriminate in how the employee is treated, and consider whether reasonable adjustments may be required.
Drugs / alcohol issues in practice
Businesses can face a variety of challenges involving drugs / alcohol and the workplace. Some of the more common scenarios include:
I suspect an employee is at work under the influence of alcohol
Suspicions are often raised where a manager spots what are seen as ‘classic signs’ – smelling alcohol on an employee, slurred speech and behaviour or performance adversely affected.
Where it is suspected an employee may be under the influence at work, it will be important not to make assumptions and to hold an initial investigation meeting with the employee to establish the facts, not least because there are some medical conditions (which may in law be considered disabilities) that can have similar signs.
Once an investigation meeting has been held, the way forward will depend on the circumstances of the individual case, for example the length of service of the employee. Where it is not a medical matter, a couple of things to bear in mind in the early stage are whether suspension is needed, and if so, how the employee will get home safely.
Often, where employees have two years’ service or more once a full and thorough investigation is completed and sufficient grounds established, the next step will usually be to commence a disciplinary process.
Getting advice on the facts of the situation you are dealing with is vital, so get in touch before acting if you suspect an employee of being under the influence at work.
An employee is refusing to undergo drug / alcohol testing
Some businesses have a drug and alcohol testing policy in place. If so, a situation may arise whereby an employee refuses to undergo a test as required by the policy. If this happens in your business, bear in mind that for legal and practical reasons you cannot force an employee to submit to a test, but a refusal may mean your business can take disciplinary action, if allowed for in your contract.
Bear in mind that if there is a refusal to comply with the testing process, the reasons for this must be explored with the employee. This is to make sure that there is no good reason for their actions. If there is not, it is usually appropriate to make clear to the employee that a failure to undergo the test could result in disciplinary action being taken in accordance with your policy and that a potential outcome of this could be their dismissal. They must then be given another opportunity to consent to the test.
If the employee still refuses or they have less than two years’ service, get in touch for specific advice on the situation you are facing.
An employee informs you they have a drug / alcohol dependency
If an employee voluntarily discloses a dependency on alcohol or drugs, as you would expect it is important to handle the matter sensitively and appropriately. Employees may bring employment tribunal claims about how they have been treated, including constructive unfair dismissal where they have sufficient service. Employers should also consider whether any related health condition may amount to a disability, as explained in the section on addiction and the Equality Act above.
If an employee in your business comes forward to reveal that they have a drug / alcohol dependency (as opposed to being caught under the influence at work), you should check to see if you have a dependency policy in place, if so, this will often set out the steps to be taken in this situation.