Guidance on employee substance abuse

Peninsula Team

August 25 2016

In tough times, employees can find themselves increasingly turning to alcohol and drugs, both ‘legal’ and illegal, to get them through the day. It is inevitable that substance use will have a knock on effect in the workplace and employers should be aware of how they can respond to any instances of substance abuse at work.

The first step is to introduce a workplace drug and alcohol policy. This should contain information on how employers will respond to substance misuse and also outline the disciplinary action which can be taken if the employee is found to be under the influence at work. Disciplinary action will depend on the individual circumstances but, for job roles where employees are operating heavy machinery, substance misuse can reasonably take the form of gross misconduct.

The policy should also make provision for drug or alcohol testing, if this is necessary to the business. This will usually be the case in environments where health and safety is critical for the employee, their colleagues and the wider public. The policy should contain the employer’s right to carry out drugs tests, for example whether these are random or following complaints, and also set out the justification for the testing. If a tribunal claim occurs due to the outcome of the test then it is likely an employment tribunal will scrutinise the employer’s reason for substance testing and it is important that they can show the employees know why they may be subject to tests. The policy should also contain the consequences of failing or refusing to take a test.

When carrying out substance tests, these should be applied fairly and consistently across the whole workforce. A good system to use is random testing but employees should not be selected for tests because of any protected characteristic such as race, gender etc. and tests should be carried out on all employee groups including managers.

Though the jump to disciplining or dismissing staff for substance abuse is usually automatic, employers should consider whether they can support the employee who has these issues. This support could be through adjusting the employee’s role while they have treatment, agreeing to suspend disciplinary action to allow for treatment or providing an Employee Assistance Programme which offer impartial, confidential counselling.

Lead Business Partner Tom Kent gave his comments on this topic: “An addiction to alcohol or drugs is specifically excluded from being a disability by the Equality Act 2010 and so this alone would not qualify someone for protection from discrimination. However, employers must be careful where the use of alcohol/drugs leads to a medical condition which itself would qualify e.g. liver disease etc.”

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