Alcohol and drug abuse in the workplace

Citation

Pitt, M. (2009), "Alcohol and drug abuse in the workplace", Human Resource Management International Digest, Vol. 17 No. 6. https://doi.org/10.1108/hrmid.2009.04417fab.001

Alcohol and drug abuse in the workplace

Article Type: Employment law outlook From: Human Resource Management International Digest, Volume 17, Issue 6

Alcohol and drug abuse in the workplace can harm not only the health and safety of the individual employee and his or her colleagues, but also business profitability.

Employees can be dismissed on the grounds of misconduct or capability if alcohol or drugs affect their performance, behavior or attendance at work.

Employers who suspect such misconduct should give the employee the chance to respond fully and thoughtfully to the allegations. This will usually mean taking the employee out of work and not holding an interview until he or she sobers up.

Employers are best placed to dismiss an employee for an isolated incident of misconduct caused by drunkenness if they have disciplinary rules against drinking at work. The existence of the rules then operates as a warning – so long as the consequences of breaking the rules have been made clear beforehand.

In the case of controlled drugs, using them is a criminal offence and employers can also commit an offence if they know that illegal drugs are being used or distributed on their premises. But employers can still incorporate rules on drugs in their disciplinary rulebook.

When the person works in a job where consuming alcohol or drugs causes serious safety risks, dismissal may be fair even when there is no specific rule on alcohol or drugs. This most obviously applies to people in driving jobs, but also covers a wide range of others, from oil-rig workers to forklift-truck operators.

In other circumstances, though, it may be more appropriate for employers to deal with long-term alcoholism or drug dependence as a medical, rather than disciplinary, issue. The Advisory, Conciliation and Arbitration Service (Acas) suggests that employers should aim to identify workers suffering from alcohol or drug abuse, and encourage them to seek help or treatment.

Strathclyde Council dismissed a caretaker for being drunk at work. The Employment Appeals Tribunal decided that the dismissal was unfair because his problems were mainly caused by manic depression, not alcohol. The council would have realized this if it had got independent medical advice.

Of course, the dismissal might have been fair if the problem had been a straightforward case of alcoholism, bearing in mind the council’s duties to pupils and other staff.

Tribunals can also recognize that employers are entitled to say that “enough is enough”, even when an employee’s problems are mainly medical.

Employees frequently claim that what they do in their own time is their own business, but this is not always the case in law, despite the Human Rights Act accepting that people have the right to a private life.

An employer could argue, for example, that an employee who misbehaves in front of colleagues or clients at an out-of-hours works function is no longer be able to carry out his or her job properly. A tribunal would be likely to uphold the sacking, provided that the employer carried out a proper investigation and the employee’s behavior was bad enough to deserve dismissal.

Employers sometimes argue that an employee has undermined their trust and confidence by his or her off-duty behavior. For example, a tribunal decided that a dental laboratory was within its rights to dismiss an employee who had been arrested outside working hours for possessing a small amount of cannabis. The employer argued that the man’s behavior could harm younger and more impressionable employees.

Employers who jealously guard their reputation can claim that this is, or will be, damaged by an employee’s out-of-hours behavior. For example, a contractor sacked an employee who was drunk on the building site where he worked, even though he was off duty. The contractor claimed that the employee, described as “legless” at the time, could have undermined site agents’ confidence. A tribunal agreed.

Finally, employees banned from the wheel because of drink-driving can be fired if driving is an essential part of their job. Dismissal is easier to achieve if the employment contract spells out that the employee must have a valid driving license or that driving is among his or her duties. But employees may still be able to claim that their dismissal is unfair if they can show that they can carry on working normally despite the driving ban.

Mike PittEmployment-law partner at Greater Manchester solicitor Pearson Hinchliffe Commercial Law. He can be contacted by e-mailing michael.pitt@pearson-hinchlif.co.uk or by telephoning +44 (0)161 785 3500.