Alcohol and other drug-related abuse has traditionally been ignored by employers in all but the most extreme of circumstances. This raises a variety of legal issues for employers, and points that need to be considered by all include whether drug abuse is an illness or misconduct; what exactly is a dismissable offence; and how can staff be tested and screened for drink and drugs?
Clearly, one of the first steps in dealing with a problem is identifying what the problem is. This has particular importance in the area of substance abuse. Employers should be aware that while there is no legal restriction upon asking for voluntary testing, there is no legal right to test or search for drugs without the employee's consent. If an employer wishes to test for such drugs, then there should be an express provision for this in the employment contract. Also, if a refusal to submit to a test is to be regarded as a disciplinary offence, this should be reflected in the contract and disciplinary rules. The consequences of a positive drug test should also be spelt out in the same documentation.
A final issue relates to the frequency of any testing programme. Testing can be done during recruitment, before an individual starts a specific job, or on a random or routine basis. As a last resort, testing could be restricted to particular individuals involved in a particular incident or accident.
Is drug abuse an illness or misconduct ?
The present view is that long-term alcoholism should properly be treated, at least initially, as illness; and best practice suggests introducing measures to assist afflicted employees and encourage them to seek help. The treatment of drug abuse as an illness has grave consequences for the employer's approach. For example, a prudent employer would seek medical advice before dismissing an employee. Similarly, it may well be fair to dismiss an employee who fails or refuses to undergo treatment.
In contrast, the treatment of drug addiction has traditionally been regarded as a misconduct issue. Such treatment may not be appropriate, however, in circumstances where the involuntary addiction is to prescribed drugs, such as tranquillisers Valium or Temazepan. It is, perhaps, of interest that both drug dependency and alcoholism are excluded from the definition of disability in the regulations associated with the Disability Discrimination Act 1995. However, a case heard in the Employment Appeals Tribunal this year held that the material question to answer is whether the employee falls within the definition of having an impairment. Even if the cause of the impairment is as a result of an excluded condition such as alcohol or drug dependence, an employee can still be classed as disabled for the purposes of the Disability Discrimination Act 1995, and an employer would be required to consider reasonable adjustments before taking the decision to dismiss.
What is a dismissable offence?
Aside from the treatment of abuse as an illness, there will be occasions of drink and drug misconduct. The position of the employer in such circumstances will clearly be strengthened if there are written rules identifying drunkenness and drug abuse at work as meriting disciplinary action, including dismissal. A dismissal may be fair in the absence of such written rules given the particular circumstances of an accused employee.
Employers must satisfy the same test in relation to drugs and other related dismissals as for other misconduct cases. To establish conduct as the reason for dismissal the employer must form a genuine belief in the fact of the misconduct following a reasonable investigation.
Consistency of treatment is also clearly important in such cases, as is a consideration of the employee's previous work history and personal circumstances. This is an area in which the employer needs to retain flexibility - but differential treatment should be considered and justified. A prohibition upon the possession of alcohol and drugs at work should be specifically included within disciplinary rules but should not be applied rigidly.
Finally, dismissals for off-duty conduct are unlikely to be fair unless the conduct damages the reputation of the business, staff morale or the credibility and standing of the employee. The main exception is in relation to drink-driving convictions. Disqualification from driving is a potentially fair reason for dismissal, but only if driving was an essential part of the employee's job.
In the event of an employment tribunal claim for unfair dismissal, employers could be facing liability for both a punitive basic award and a compensatory award subject to a statutory maximum of £55,000 (from February 2004). The extent to which any award would be reduced by reason of the employee's contributory conduct must also be open to speculation. The social drinker caught out on work time may be dealt with more severely than the long-term alcoholic.
Gareth Edwards is an associate in the Nottingham employment team of the national law firm Eversheds.