Liquid lunches: can an employer stop staff drinking during working hours?

Photofusion/REX/Shutterstock
Photofusion/REX/Shutterstock

Employees at Lloyd’s of London have been banned from drinking alcohol during the working day, it has been reported.

The company has included the new policy in its employee guide, and it prohibits staff from consuming alcohol between 9am and 5pm Monday to Friday.

It was introduced after the historic insurance market – founded in the 17th century – discovered that around half of disciplinary cases in the last year were related to the misuse of alcohol. It only applies to its 800 direct employees, and not to the many independent brokers and underwriters who work in the same building.

Lloyd’s circulated a memo which said: “The London market historically had a reputation for daytime drinking, but that has been changing and Lloyd’s has a duty to be a responsible employer, and provide a healthy working environment. The policy we’ve introduced aligns us with many firms in the market.”

The memo added: “Drinking alcohol affects individuals differently. A zero limit is therefore simpler, more consistent and in line with the modern, global and high-performance culture that we want to embrace.”

Employees have reacted angrily to the new directive, however, with one posting on the company intranet: “Lloyd’s used to be a fun place to work. Now it is the PC capital of the world where you can’t even go out for a lunchtime pint anymore.”

Failure to comply with the new policy could see employees accused of gross misconduct, and they could risk losing their job.

But how far can an employer police what workers do when they are outside the office, arguably on an unpaid lunch break? Here are four issues to consider before enforcing a workplace drugs or alcohol policy or testing regime.

 

Why do you need an alcohol policy?

Unless your environment is safety-critical, such as a building site, it is important to be clear as to why any policy banning alcohol consumption or testing related to that policy will be necessary.

Think about parameters, such as social workplace events or employees travelling on business – does the policy apply then?

A policy could raise awareness of about the consequences of alcohol or drugs misuse and detail any disciplinary action for employees who overstep the line.

One of the key issues to consider is whether or not workplace testing is necessary – this may be justified in safety critical environments, but may seem less reasonable where this is not the case. Deciding to implement testing to minimise reputational damage or as a deterrent could be challenged.

 

Ensure any requirement for alcohol testing is lawful

If you decide to implement alcohol testing, it’s important to make clear in your policy what the consequences of refusing or failing a test will be.

An unreasonable request for an employee to take a drug or alcohol test may leave the employer open to claims of constructive unfair dismissal. This is because requiring an employee to test may seriously damage the relationship of mutual trust and confidence.

It’s also crucial to fully investigate any positive findings. In the case of Bailes v First Bristol Ltd, a bus driver successfully claimed for unfair dismissal after he was sacked for a positive test for cocaine.

He insisted he had never taken the class A drug, but that it may have found its way into his system by handling contaminated bank notes from passengers. He won a total of £84,000 in compensation, including potential loss of earnings.

 

Be consistent

Any decision to test or police alcohol consumption at work should be applied fairly, and not limited to staff based on certain characteristics. Employers should not offer favourable treatment to or be less strict with members of management, for example.

In the case of Dyson v Asda Stores, a warehouse manager refused to test out of pride and was dismissed. However, an employment tribunal found the dismissal to be fair because the company had applied testing consistently and argued he should have set an example to other staff.

If you carry out random testing of employees, ensure this is not discriminatory.

 

What about rights to privacy?

Arguably, an employee could argue that a requirement to take a drug or alcohol test interferes with their right to respect for private and family life – art.8 of the European Convention on Human Rights.

Furthermore, because testing may be intrusive (such as having to remove clothing or give hair or urine samples), this could be considered an invasion of privacy.

If someone did pursue a claim along these lines, an employer would have to demonstrate that the interference was in accordance with law and was a proportionate way of meeting a legitimate business aim.

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