After seemingly endless stories of corruption and scandal, the UK’s banks are attempting to clean up their act, according to the media. This involves challenging the drinking culture which is, apparently, as much a part of office life in banks as long hours and gossip at the water-cooler.
But it’s not only banks which face the consequences of a drinking culture amongst some employees: 15 million working days per year are lost to the excessive use of alcohol in the UK. Not only does this reduce productivity but it can also lead to absence, behavioural problems and accidents. Since employers have a duty to ensure the health and safety of all of their employees, the issue of alcohol (and drugs) in the workplace should be addressed by all employers.
The first distinction an employer should try to make when dealing with alcohol and drugs in the workplace is whether the problem is one of dependency or conduct. Alcohol and drug dependency, whilst not generally treated as disabilities under the Equality Act 2010 (though dependency can lead to disabilities such as depression or liver conditions), should be treated like any other illness, under the employer’s absence/capability policy (i.e. sympathetically and constructively). Employees should be encouraged to seek medical help and counselling and any period of rehabilitation should be treated as a sickness absence. Should the employee not manage to get over the dependency, after all avenues have been explored, the employer can implement the appropriate procedure and eventually dismiss the employee for lack of capability to do the job.
If the problem is more one of conduct, such as a one-off act of drunkenness/drug-taking in the workplace or at a client event, or persistent absences on a Monday after the night before, this should be dealt with through the disciplinary procedure, like any other misconduct. Should the conduct be particularly serious, and it is reasonable to do so, it is open to the employer to dismiss the employee. Generally speaking, if a dismissed employee makes a claim of unfair dismissal at the Employment Tribunal, the Tribunal panel is more likely to support the employer if the issue is one of drug-taking rather than alcohol, probably because of the criminal nature of the former. This is not to say that a Tribunal won’t find the dismissal of an employee dismissed because of alcohol misuse fair, if the conduct is serious enough and the employee has been treated fairly and consistently.
Fair and consistent treatment is far more likely to be achieved if an employer has in place and implements a Drugs & Alcohol Policy setting out acceptable and unacceptable standards, when it’s acceptable and unacceptable to drink alcohol at social, work and client events, the disciplinary procedure that will be invoked should there be misconduct, and the penalties for breaching the policy. The policy should set out that the employer reserves the right to send an employee home if he or she is under the influence of alcohol and drugs.
The policy can also include the employer’s position in relation to drugs and alcohol testing. It will only be lawful to test employees if the employer’s right to carry out the test is an express term of employment, otherwise it will amount to assault. Employers considering introducing testing should be aware that this will amount to a variation of contract meaning that employees will have to be consulted with and their consent to the change sought.
In all cases of drugs and alcohol misuse employers should find them easier to deal with if there is a written policy to follow. Should you require a tailored alcohol and drugs policy, have any questions about this topic or about employment law in general, please do get in touch.