What should employers do when bizarre addictions impact on the workplace? Guy Guinan offers guidance.
Recently, James Pacenza brought a $5m (£2.5m) lawsuit against IBM in the US for wrongful dismissal after being sacked for looking at pornography at work.
Can an employee found visiting sexually explicit websites be dismissed? The answer would normally be that such inappropriate use of the internet is grounds for summary dismissal. But what if the employee is being driven to view such sites because he is a sex addict? Should the employee be helped rather than dismissed under such circumstances?
This is the issue that a court in the US will consider soon, when it decides whether IBM is liable for wrongful dismissal. Pacenza claims he is a sex addict because he has suffered from a long-term stress disorder since the Vietnam War, and that his use of the internet to visit adult-rated chatrooms has helped him to control his psychological problems.
His use of these websites has served as a form of self-medication that should have led to his employer offering support, he says, rather than dismissal.
Not surprisingly, IBM does not consider that this is the same type of situation as where an employee is suffering from an addiction to drugs or alcohol and, as the employee had previously been warned about visiting inappropriate websites, it considers the dismissal appropriate. At the time of going to press, the case had been adjourned to 29 June.
Whatever the outcome, it’s likely to have huge implications for employers across the US and their attitude towards regulating how employees use workplace computers.
So when can you label an employee an addict, and what behaviours in the office will be deemed symptoms of an addiction?
An addict is defined as someone who has a recurring compulsion to engage in some specific activity. Typically, the term ‘addiction’ will immediately bring to mind a person who is addicted to drugs or alcohol.
If an employee turns up for work drunk, you should have grounds to dismiss them. However, if it is discovered that the employee is an alcoholic, then generally, you need to take steps to help that person recover.
We are seeing the term ‘addiction’ applied increasingly to employees in work situations who display unusual habits on a regular basis. For example, alarm bells may ring if you discover that an employee is habitually using a PC at work to place bets in online casinos. Or what if you discover one of your employees is internet shopping every day? Could they claim that they are suffering from an addiction to shopping (oniomania)?
If an employee is continually feeding any habit during work time, you will need to take action to protect the business.
There are numerous addictions that employees might suffer from. Given the broad spread of possible addictions, it’s impossible for you to develop a specific policy for every conceivable addiction. You could either develop a ‘general addictions’ policy, or include guidance about addictions within a disciplinary policy.
Either way, the message should be the same – if unacceptable conduct is linked to an addiction and the employee is prepared to undergo treatment, you should always help your employee to beat their addiction if possible, rather than automatically dismiss them.
If attempts to help the employee fail, and dismissal is unavoidable, you need to ensure a dismissal is fair. Misusing IT facilities or work time will generally be viewed as a conduct issue, giving grounds to start disciplinary and dismissal procedures. A full investigation will be required into all the circumstances and a fair process must be followed before any decision to dismiss is made.
This means the statutory dismissal and disciplinary procedure shall be taken into account, as well as any contractual provisions that relate to dismissal and disciplinary policies. Employers should also consider whether there are potential discrimination complaints.
It is not only the US that suffers from unusual addictions in the workplace. In this country too, dismissals on grounds of unusual addictions or activities have been challenged.
In Edmund Nuttall Limited v Butterfield, the employee was dismissed when it came to light that he had developed an addiction to exhibitionism. His employer only realised this after he had been convicted of exposing himself twice during a business trip.
However, his employer had been aware that he was suffering from severe depression, and he initially made successful claims of unfair dismissal and disability discrimination on the grounds that it was his depression that gave him these exhibitionist tendencies.
On appeal, it was held that his claim of disability discrimination could not succeed, as the sole reason for dismissal related to the exposure, which was an excluded condition under the disability discrimination legislation.
Nevertheless, his claim for unfair dismissal was upheld, partly on the grounds that the employer had failed to consider whether he was likely to reoffend, given that he was having psychiatric treatment.
While the exclusion of addictions from protection under the disability discrimination legislation is important, it will not always provide a defence. In the case of Hutchison 3G Limited v Mason, it was held that the employer had discriminated against an employee when it dismissed him for being absent when his absence was connected with a cocaine addiction, brought about through depression. The employer should have allowed the employee time off for rehabilitation and treatment.
If faced with a bizarre addiction in the workplace, before going down the disciplinary route, consider an individual’s particular circumstances to establish whether they are suffering from an addiction that may be helped by treatment.
The extent of the support that you will be expected to give will depend largely on the circumstances of the individual case. If it does appear that the behaviour can be cured with support, you should offer this support if reasonably practicable.
If an employee refuses, consider whether he or she will be able to continue in the role or whether there may be suitable alternatives. Eventually you may find that there is no choice but to take disciplinary action. In such circumstances, evidence of your consideration of help and support will aid your defence against a claim.
Guy Guinan is employment partner at national law firm Halliwells
Protection against addicts
- Put into place guidance – in a staff handbook, equal opportunities policy or an acceptable conduct policy – which sets out acceptable standards of conduct.
- Make these crystal clear to employees to ensure that the business is better protected against unusual addiction claims.
- Your policy should set out your expectations of the conduct of employees in the workplace and, in some cases, also outside the workplace.
- Remind employees that they are responsible for ensuring that outside interests do not have an adverse effect on their ability to carry out their work duties.
Supporting your staff
- Be supportive
- Obtain medical evidence
- Check to see what resources are available for treatment/counselling/medication
- Consult employee about treatment/counselling/medication, and make arrangements
- Arrange a timetable for treatment and monitoring
- Review progress of employee’s recovery.