Research shows that 13% of workers in the UK use illegal drugs, 5% of absences are alcohol related and that 15% of workers have been intoxicated at work. It is no longer uncommon for an employee to alert you to an addiction, or for there to be indications that an employee is misusing drugs or alcohol.
Evidence of drug and alcohol misuse at work might include:
- Absenteeism or poor punctuality.
- Behavioural issues.
- A drop in productivity and standards.
- General underperformance.
Addiction or recreation?
Any action is likely to hinge on whether the issue is one of dependency or rather a recreational use of drugs or alcohol. Also, whether the individual alerts you to the problem.
While the effect of an employee’s misuse of drugs or alcohol to the business should never be downplayed, addiction is a capability issue rather than misconduct.
Where the employee has disclosed a dependency, the focus should be on encouraging them to seek help and treatment, via a referral to occupational health or a specialist substance abuse counsellor. Allowing special leave (paid or unpaid) to undergo treatment is also recommended. Their progress can then be monitored to assess whether they are capable of resuming their duties. If this is unlikely within a reasonable timeframe, or your confidence in the employee is undermined, a performance management process may be warranted, potentially leading to dismissal.
If an employee has not declared an addiction but their behaviour or appearance suggests otherwise, you should proceed with extreme caution.
Where the contract of employment provides, you could refer the employee to a medical expert for a general opinion on their health and wellbeing. While you could pass on your concerns confidentially to the specialist, bear in mind how to treat the outcome. This is especially important where there is evidence of alcohol or drug misuse, but the employee does not admit to this.
An alternative approach is to follow a standard capability or disciplinary procedure, focusing on the pertinent issues and not mentioning the suspicion of drug or alcohol use.
Disciplinary route
Where the issue is one of potential recreational misuse leading to behavioural, reliability or other misconduct issues, a formal disciplinary procedure incorporating a reasonable investigation should be followed. That is unless the employee has below two years’ service and where the risk of not following a procedure is low. Generally, it is not advisable to risk raising with the employee your suspicions about the underlying cause of their misconduct.
Medical evidence
If an employee is terminated and brings a claim (for example, for unfair dismissal), an Employment Tribunal may want to review whether, in the circumstances, it would have been reasonable to defer for medical advice.
For example, if an employee presents as being under the influence at work but claims to be suffering from a medical condition that bears similar symptoms to such, you would be ill-advised to disregard the evidence without investigating it before deciding to dismiss.
Disability discrimination?
An addiction or dependency can only constitute a disability under the Equality Act 2010 if triggered by the use of prescription drugs or other medical treatment. However, impairments brought on by addiction (for example, depression or nerve damage) could be classed as a qualifying “disability”. Where this is known or reasonably believed to apply, reasonable adjustments should be considered, along with the risk of a disability discrimination claim (and unfair dismissal if terminated).
Policies and testing
A detailed drugs and alcohol policy will assist you to deal with misuse and consequential problems in the workplace. Spot testing for drugs and alcohol is also permitted provided there is a written policy and a justification for it. Workers must be made aware of such a policy, what testing entails and that they may be subject to random, “for cause” testing (where misuse has been reported or is suspected). Positive tests should also be dealt with consistently.
Conclusion
In the event of an employee’s admitted or known addiction, your approach should be based on help and support. However, where there are ongoing problems, a loss of trust in the employee, or concerns the employee could endanger themselves or others at work, dismissal will often be justified.
