Alcohol consumption in the UK is rising. Employers need to consider the impact longer pub opening hours could have on the workplace, the legal implications, and practical steps to take when dealing with alcohol in the workplace.
From February 2005, pubs and clubs in England and Wales have been able to apply for an extended 24-hour licence. This is the forerunner to the introduction of a new licensing system from November this year when the Licensing Act 2003 comes into full effect. In practice, pubs will stay open until midnight or 2am unless it is economically viable to stay open for 24 hours.
The government’s rationale for extending licensing laws is that drinkers will not be tempted to try to ‘beat the clock’ in the run-up to closing time and that drinking establishments will empty over a longer period of time, reducing violence and anti-social behaviour.
However, as people will be able to stay out drinking alcohol for longer, it is feared that alcohol-related absences could increase. There may also be increased issues of poor performance and disruptive behaviour in the workplace.
Binge drinking is defined as where an individual has drunk more than double the recommended daily amount, amounting to more than six to eight units, at least once a week. Several cultural factors conducive to binge drinking have been identified in the UK, and estimates suggest that 5.9 million adults in the UK binge drink, a large number of whom are likely to be in employment.
An important issue with binge drinking, and the extension of the licensing laws, is that often there is little awareness of how long alcohol remains in the body. According to the alcohol awareness website, www.drinkaware.co.uk, the liver can remove alcohol at a rate of about one unit per hour. If an individual drinks six to eight units of alcohol or more until 2am, a significant amount of alcohol is likely to be in the body the following morning.
Absence and performance
Alcohol misuse among employees costs up to 6.4bn a year, with up to 17 million working days lost each year owing to alcohol-related absence. A study in 2000 found that 60% of employers reported problems because of alcohol misuse.
Despite national initiatives to reduce consumption, alcohol intake among women is rising and men are drinking the same amounts as they have for the past few years. Combined with longer licensing hours, it is feared that alcohol consumption will continue to rise, resulting in even greater cost to UK businesses through alcohol-related absence and reduced productivity.
Health and safety
The problems of alcohol consumption by safety-critical staff, such as train drivers or airline pilots, are obvious. Not only are there implications for their own safety but also that of others. Wider issues of health and safety concerns arise in any situation where employees are at work while under the influence of alcohol.
The Health & Safety Executive has reported that alcohol is related to 23% to 25% of all industrial accidents. With longer drinking hours, more employees may well come into work still under the influence of alcohol, thereby increasing health and safety risks in the workplace.
Employers have a duty to ensure a safe working environment for all their employees. So alcohol intake in the workplace, or any issues of an employee being under the influence of alcohol at work, must be addressed.
However, employees should not generally have to account for their activities outside of work – they have the right to a private life under Article 8 of the Human Rights Act 1998. Employers may risk claims if they are too quick to discipline employees for ‘drinking’, particularly if such consumption takes place outside of the workplace, although this will always depend on circumstances. Further, Article 8 is not an absolute right and it may be justified to take steps, such as testing in the workplace, linked to an employee’s private life if such steps are proportionate and in the genuine public interest.
It is an offence for workers to be unfit through drink if there are health and safety implications (for example, pilots or employees operating machinery or driving).
Faced with the prospect of increased availability of alcohol, employers should thoroughly review their testing policies and procedures to ensure they have adequate protection and the ability to deal with any such issues in the workplace.
Unfair dismissal protection
Employers need to ensure that they act in accordance with the Employment Rights Act (ERA) 1996, if dismissing an employee who has one year of continuous service, by having a fair reason for dismissal and using fair procedure.
In coming to its decision on fairness, an employment tribunal is likely to have particular regard to whether the employer had in place, and followed, a formal and reasonable alcohol policy or procedures.
In addition, the new statutory disciplinary, grievance and dismissal procedures must be adhered to pursuant to the Employment Act 2002 (Dispute Resolution) Regulations 2004. Essentially, these require that employers and employees follow a minimum three-stage process to ensure that issues are discussed at work.
The process will require:
- the issues to be set out in writing, with full details provided to the other party
- both parties to meet to discuss the issues
- an appeal to be arranged if requested.
Alcoholism is not a disability, but employers must be aware of the legislation as any resulting – or underlying – illness, such as liver disease, could be classed as a disability. Employers have increased duties under the Disability Discrimination Act to ensure that they do not discriminate against a disabled person in, for example, failing to make reasonable adjustments in the workplace. Employment tribunal awards for discrimination are not subject to a statutory cap and so can be significant.
What should employers do?
Consider the following:
- Conduct a risk assessment to identify the relevant issues, such as health and safety, staff absences, poor performance
- Introduce an alcohol policy, which reflects the issues identified and is tailored to the workplace, or review the current policy to ensure it is still up-to-date, also in light of the new statutory disciplinary, dismissal and grievance procedures
- Tighten disciplinary procedures in dealing with alcohol-related absence, disruptive behaviour and/or performance decline to ensure these procedures are in line with any alcohol policy and the new statutory procedures
- Introduce alcohol testing (although this will only be justified in safety-critical industries).
By providing access to OH in the workplace, an employer is also helped significantly in dealing with alcohol issues at work. OH can work together with the employer to help manage health and safety and disciplinary procedures.
OH could also promote education through disseminating information about alcohol and its effects on an individual’s health and those around them, both in the workplace and at home. Various organisations dealing with alcohol issues can provide leaflets that OH can have handed out to staff or put on noticeboards to, for example, make staff and managers aware of how many hours it takes the body to break down alcohol.
Awareness of the issues of alcohol use is key, and perhaps this change to the licensing laws gives employers and OH departments an opportunity to address alcohol-related issues in the workplace. A good starting point would be to provide information and training to staff on the effects and consequences of alcohol misuse.
Ingrid Overett Somnier is an employment lawyer with Coudert Brothers
PRACTICAL TIPS ON DRAFTING AN ALCOHOL POLICY
- Consult with and inform trade unions/staff councils and/or employees
- Conduct a risk assessment, then draw up a policy. This needs to set out its aim clearly and should fit existing policies on, for example, disciplinary issues. It should reflect the needs of the workplace and make it clear what is expected of employees, how alcohol issues will be dealt with, and what the consequences of alcohol misuse are
- It is important to distinguish between alcoholism and alcohol abuse and how each one will be dealt with
- The policy needs to be accessible and brought to the attention of all staff. It should also be applied fairly and consistently and be updated as appropriate.