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Duty of care to employees with drug & alcohol addiction

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With drug and alcohol misuse a prominent issue in the UK, employers need to safeguard themselves against the potential problems caused by employees with addictions. Claire Bolton advises employers how to construct an addiction policy and support those employees affected, as well as safeguarding the wellbeing of the rest of the workforce.

How prominent is drug & alcohol misuse in the UK?

Government statistics indicate that one in three men and one in five women drink over the recommended alcohol limit of three to four units per day for men and two to three units per day for women. The European Monitoring Centre for Drugs and Drug Addiction estimates that somewhere between 2-2.5% of young adults are using cannabis on a daily or near-daily basis, and 35.8% of all adults between the age of 16 to 59 have tried an illegal drug at least once.

Recent research by the charity Drinkaware revealed that around 520,000 people go to work with a hangover each day in the UK, while the average person goes to work suffering from the effects of too much alcohol at least three times a month. They report that almost one in five people (around 17%) admit that they struggle to manage their workload and make mistakes as a result of being hungover. Up to 14 million working days are estimated to be lost each year in the UK due to alcohol or drug related sickness absence.

Employee rights & obligations in the workplace

Illegal drug and alcohol use in the workplace is an issue for UK employers and effective policies are critical.

Employers are required under the Health & Safety at Work Act 1974 (the "Act") to address the issue of alcohol in the workplace. The Act imposes a duty of care on employers not just in respect of intoxicated staff, but also to all other staff in the workplace. Employers should ensure they have a clear policy in place specifying what is acceptable behaviour and what amounts to misconduct, so that their employees can be in no doubt as to when the misuse of alcohol will result in disciplinary action.  

There is no general obligation on employees to organise their lives in such a way as to maximise their productivity at work, and socialising with colleagues may form part of work culture in organisations and be seen as part of fitting in. However, within certain industries it may be appropriate for employers to implement a zero tolerance policy on drugs and alcohol, such as in the construction and transport sectors, where safety is critical. Employers in these sectors may wish to consider the introduction of drug and alcohol testing.

What should be included in a drug & alcohol policy

Testing or screening can form part of a drug and alcohol policy. There are three types:

  • pre-employment
  • unannounced or random testing
  • post incident testing.

Pre-employment testing is self-explanatory, but is rarely an effective method of dealing with addiction as the individual will simply not be hired. Unannounced or random testing is used as a deterrent to drug and alcohol misuse and is much more effective. Employers must have a robust policy in place including the selection criteria for choosing the individual to be tested to avoid allegations of discrimination.

Post incident testing may be used to establish whether drugs or alcohol were the cause or a factor in an accident or incident. It's estimated that around 25% of accidents at work are alcohol related.

Should employers test staff for drugs & alcohol?

Employers should tread carefully when introducing alcohol and/or drug testing for employees. The investigation of what is deemed to be an employee's private behaviour potentially conflicts with the employee's human rights and the concept of privacy. 

The extent to which employers can require employees to undertake drug or alcohol testing, even where there is a clear right to test the employee contained within the individual's employment contract or the employer's policies, is therefore limited. An unreasonable request will result in a breach of the implied duty of mutual trust and confidence, potentially leading to a successful unfair constructive dismissal claim. 

Obtaining samples without consent could in addition constitutes the criminal offence of assault or battery. In the absence of a clear indication that the employee is using, or being affected by, alcohol or drugs at work, the employer must ensure that they can justify all tests carried out. Testing is more likely to be more justifiable in safety critical roles or occupations where the public is entitled to expect standards of safety and sobriety. 

Taking disciplinary action with employees

Out of hours drinking in itself is insufficient to warrant disciplinary action, unless there is a clear link between the employee's conduct out of hours and the employer's business interests, or where the employee brings the employer into disrepute. 

As ever, before taking any action the employer must carry out an adequate investigation.  Where drug and/or alcohol testing is used and produces a positive result, employers must still ensure that they comply with their disciplinary policy before taking a decision to dismiss. Employers should be careful not to prejudge the situation and should allow the employee to state their case. 

The Disability Discrimination Act

Employees may claim to be suffering from an addiction. In this case, the employer would be prudent to treat the employee as if they were suffering any other illness. Alcohol and drug addictions are specifically excluded from protection under the Disability Discrimination Act 1995 (the DDA), however, the Disability Discrimination (meaning of disability) Regulations 1996 state that it is not necessary to consider how an impairment is caused in order for it to be a disability.

The test is whether the ill-health constitutes a physical or mental impairment that has a substantial long-term adverse effect on the employee's ability to carry out normal day-to -day activities. Therefore an employee who suffers ill-health, for example depression, as a result of their addiction may well be deemed to have a disability for the purpose of the DDA. Equally, addiction may mask an underlying condition such as depression, which the employee may then argue confers protection under the DDA.

Supporting employees who have an addiction

Best practice where an employee declares a drug or alcohol addiction is to treat it as any other illness and offer support, which can be on the condition that the employee agrees to undergo treatment. Depending on the type and severity of the problem, the level and nature of the assistance may vary. The provision of counselling and a referral to an occupational health service or an employment assistance programme may be a good starting point. In cases of severe dependency, the individual may require referral to a rehabilitation centre to ensure effective support and treatment. 

Management and staff training is key in helping to establish a successful drug and alcohol policy. Training should help managers and employees to identify the signs of potential drug or alcohol misuse and ensure that employees are aware of what support systems are available and the implications of non compliance with the policy. The policy should enable employees to report their own drug or alcohol problems without fear of being reprimanded. Employees need to be encouraged to admit if they have a problem and be supported by their employer.

The link between addiction & mental health

Drug and alcohol addiction can be caused by, or result in, mental health issues which can then be exacerbated by workplace pressure. Employers may wish to consider incorporating their drug and alcohol policies into a wider employee well-being strategy dealing with long term mental and physical illness.

Davies Arnold Cooper recently held a seminar with Ultimate U, who specialise in well-being and staff development. Fiona Yorke, managing director of Ultimate U, advised delegates that:

"Mental wellbeing in the workplace is becoming more and more important as organisations come out of the recession and need to re-invest in their people who have 'ridden the storm' of uncertainty with their employers; many seeing colleagues being made redundant. This all takes a psychological toll on the employee. 

"We recommend developing a mental health policy to ensure that your organisation gives full commitment to mental wellbeing. This also provides a platform for discussion about mental ill health at board level." 

Fiona also suggests that organisations should spend time raising awareness among managers and staff about typical mental ill health conditions and what sort of support people might need:

"There is still a lot of stigma surrounding mental illness. Getting the facts and encouraging dialogue around mental wellbeing is essential for the modern working environment."

It's clear that a well developed drug and alcohol policy is key to ensuring the general well-being of an employer's workforce.

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