Taking drugs or alcohol at work can be gross misconduct, but if you think your staff are being affected by what they take away from work you need to deal with the situation carefully and fairly. Matthew Tom explains.
You have noticed increasing issues with certain employees' attendance, timekeeping, performance and general attitude. You also overhear them discussing a recent nightclub outing, in ways which give you reason to think they are regularly drinking heavily and/or taking drugs outside work.
Possession or consumption of drugs or alcohol at work can be gross misconduct, but employers need to set out their rules clearly and apply them consistently. Employers should carefully record their reasons if any different approach is taken in an individual case - for example, a warning instead of dismissal.
It will usually be unfair to dismiss an employee based solely on drug or alcohol consumption away from work, unless there is clear evidence of detrimental impact on attendance, timekeeping, or performance. Proper disciplinary investigations and hearings will be needed and employers will always need to demonstrate they acted reasonably, in order to avoid unfair dismissal claims.
Drug or alcohol addiction is not a disability under the Disability Discrimination Act 1995, but conditions such as depression or liver disease can still qualify, even if caused by addiction problems.
Assuming the employer has clearly set out their position on drugs and alcohol consumption, the first step will be to set out concerns about any issues over attendance and timekeeping. This should be in the form of a letter which invites the employee to an investigation meeting. It is not a disciplinary hearing but the employee should be informed that, depending on his or her responses, a disciplinary hearing may follow.
The investigation meeting should focus on the performance and conduct issues and make enquiries as to any underlying causes. It is appropriate to ask whether any lifestyle issues or social activities may be causing the problems, but direct accusations should be avoided unless very clear evidence is available.
Employers are obliged to maintain mutual trust and confidence at all times and unsubstantiated accusations can lead to resignations and constructive dismissal claims.
Any subsequent disciplinary hearing should comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures and the employee should be afforded the right to be accompanied by a colleague or trade union official. A series of warnings should be implemented prior to dismissal where action is to be taken over performance or conduct issues.
Summary dismissal should only be applied in cases of gross misconduct - eg, for possession, supply or consumption at work, or where the employee's actions bring the employer into disrepute (for example, if charges are brought against the employee and there is adverse publicity).
If the employer wants to search bags and lockers, or to carry out drug and alcohol testing, it must reserve these rights in contracts or policies. If not, while it would still be appropriate to take action over any drugs or alcohol that is found during a search, if nothing is found then the employee may regard trust and confidence as having been breached and may claim constructive dismissal.
Testing for residual drugs and alcohol taken outside work is likely to infringe the right to private life under the Human Rights Act 1998, unless it can be justified on grounds of health and safety (eg, in transport or construction) or on grounds of overall integrity (eg, the police). Employers should also be careful to maintain strict confidentiality during investigation and disciplinary procedures.
TO DO CHECKLIST
• Ensure your policies clearly explain your position on drug and alcohol issues.
• Ensure proper investigation and disciplinary procedures before taking any action.
• Give warnings over performance, conduct, etc, before dismissing, even where you suspect (or know) that drugs or alcohol are the causes.
• Consumption, possession or supply at work can be gross misconduct - however, the overall context must be considered reasonably for alcohol consumption.
• Treat employees consistently and follow the ACAS code at all stages.
Breach of mutual trust and confidence via unsubstantiated allegations or unwarranted searches can give rise to wrongful and unfair dismissal claims and potentially also discrimination claims. Unfair dismissal compensation can reach £65,300. Discrimination claims have no overall cap on compensation and can include compensation for "injury to feelings" up to £30,000.