Sophie Robertson
What would you do if you suspected one of your employees was struggling with alcohol or drug dependence? Does their dependence amount to a disability? Are you justified in dismissing somebody who comes to work smelling of alcohol?
We are seeing an increasing number of cases relating to drug addiction and alcoholism in the workplace. We will be hosting a seminar in the Spring aimed at employers and HR professionals focusing on this issue and how substance abuse links to disability.
The law
Employers have a legal duty to protect employees’ health, safety and welfare. Having a staff member who is under the influence of drink or drugs could put the safety of the staff member and their colleagues in jeopardy.
Should you dismiss an employee with alcoholism or drug abuse problems?
Alcoholism or drug abuse can impact on an employee’s day to day performance. From punctuality and lower productivity to the more serious risk of accidents at work, addiction can prove costly for employers. It can also put the safety of the employee and others at risk.
At our seminar we will consider the best approach to dealing with an employee who has a drink/drug dependence. We will examine whether the dependence is an issue of capability and requires employers to support the employee or whether the matter should be handed as a disciplinary.
Alcoholism and drug abuse are sensitive areas and it is important that employers are well informed in relation to each individual case. Where an employee appears to be suffering from alcohol dependence the employer should obtain medical evidence to determine whether a disability could be the cause of the alcohol dependency.
Employers must act in accordance with any staff policies on drug and alcohol abuse and ensure a fair performance management process is followed.
To dismiss an employee for alcohol related reasons an employer could potentially rely on conduct, capability or some other substantial reason depending on the circ*mstances. For example, if the employee’s alcohol problem is likely to be long-term and a return to work is not foreseeable then it may (depending on all of the circ*mstances), be fair to dismisson capability grounds. Alternatively, the employer may argue thatit has lost trust and confidence in the employee and the dismissal therefore falls under the categorysome other substantial reason.
If the employer decides to support the employee’s recovery and permit them to return to work once they are fit to do so (rather than dismiss) then it may consider random alcohol testing in the future.
Is alcohol or drug abuse a disability?
Under the terms of The Equality Act 2010 (Disability) Regulations 2010 (SI 2010/2128) (the Act) an addiction to alcohol is not to be treated as an impairment for the purposes of the Equality Act 2010.
However, an employee may have a physical or mental impairment that does amount to a disability which was caused by or was the result of alcohol addiction, for example a serious liver condition or a depressive illness. The employee would in this case be disabled, notwithstanding that the disability was caused to a large extent by the alcohol addiction. The cause of the disability is not relevant. Conversely, the alcohol addiction could be a symptom or side effect of some other medical condition from which the employee is suffering, which itself amounts to a disability.
So it is essential that employers tread carefully, follow the correct procedures and documents their actions if they decide to treat the dependence as a disciplinary issue.
Dealing with drug and alcohol problems in the workplace
Employers should have a well drafted policy drug and alcohol misuse which is communicated to employees through staff training. It is essential that management and supervising staff know the signs to look out for when identify drug and alcohol misuse.
It is important to remember that drug and alcohol dependence are recognised medical problems. Someone who is misusing drugs or alcohol has the same rights to confidentiality and support as they would if they had any other medical or psychological condition. Not all workplaces have access to occupational health services, but employers can still support employees by signposting NHS departments and other agencies that can offer help.
Register your interest
To register your interest in our seminar around this topic later in the year please email our Employment team on marketing@bermans.co.uk
