With the UK’s reputation for heavy drinking, it’s not really surprising that employers end up having to deal with some of the consequences of alcohol misuse. And with the festive season almost upon us, these issues are more likely than ever to crop up.
Q Can we take disciplinary action against an employee if they turn up for work drunk?
A Yes. Turning up for work drunk is clearly a potential disciplinary offence. However, before taking any disciplinary action, you should give the employee an opportunity to explain their behaviour. The appropriate disciplinary sanction will depend on such factors as their past disciplinary record, and whether or not it was a one-off incident.
If the employee has a drink problem, you should encourage them to seek help and get treatment. Depending on the background, it may also be more appropriate to deal with this incident as a sickness issue rather than one of misconduct – especially if it is repeated.
Q If an employee has a drink problem, will they be protected under the Disability Discrimination Act (DDA)?
A An addiction to alcohol does not amount to a disability for the purposes of the DDA 1995. However, they may be protected if they have an accompanying impairment that satisfies the definition of a disability – for example, liver damage, or depression arising from the addiction.
Q How should we deal with an employee who is caught taking drugs at the Christmas party?
A The use of drugs at a work-related social event will normally justify a fair dismissal, provided you follow a fair procedure and adhere to the statutory disciplinary procedures. You should clearly take steps to investigate the matter, and give the employee a chance to put forward an explanation or mitigation before imposing any sanction.
Q If an employee is stopped for drink-driving and loses their licence, can we sack them?
A Whether or not it will be fair to dismiss an employee in such circumstances depends on a number of factors, including whether they are required to drive to carry out their job whether they can continue to perform their duties without a driving licence whether there is another job that they could do during any period of disqualification and any company rules.
If an employee needs to be able to drive in order to carry out their duties, and there are no alternative arrangements that can be put in place, then you should be able to show a potentially fair reason to dismiss them in such circumstances. But it will still be important to follow a fair procedure and adhere to the statutory disciplinary procedures.
Q One of our employees failed to turn up for work after the Christmas party. We suspect they had a hangover. Can we take action?
A While you might suspect that the employee was hungover or simply malingering, it is important that you clarify the reason for their non-attendance – mere suspicion is not enough. Only if you have evidence to suggest that the employee was probably not genuinely sick should you treat this as a disciplinary matter. It is a good idea to warn staff prior to the Christmas party that any unauthorised absence after the event may be treated as a disciplinary matter.
Q Can we introduce drug and alcohol testing?
A Yes, however drug and alcohol testing is very intrusive, and is usually only appropriate where it is for health and safety reasons. Even then, you should consider whether there are any alternatives to blanket testing. Any test results will amount to sensitive personal data under the Data Protection Act 1998, and you should therefore ensure you satisfy the relevant conditions set out in the Act before processing such information. The Information Commissioner has issued guidance to help employers stay on the right side of the law.
If you bring in testing, you should introduce a drug and alcohol policy so that your employees are aware that you will be carrying out such testing, what they will be tested for, what the information will be used for, and the consequences of breaching the policy.
Q Should we have an alcohol and drugs policy?
A Yes. Having one in place can help managers deal fairly and consistently with such problems in the workplace. It also ensures that staff are aware of the employer’s stance on these issues, and the consequences of breaching the policy. If you introduce a policy, however, make sure you comply with it, otherwise you could come unstuck if an employee takes you to tribunal.
By Sue Nickson, partner and international head of human capital, Hammonds
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