Drug and alcohol misuse has a big impact on the workplace, with the National Institute for Health and Clinical Excellence (NICE) estimating the cost of alcohol-related absenteeism in England at £1.7 billion per year. Qian Mou, employment law editor at XpertHR, provides five tips for employers to respond to employee substance misuse.
1. Implement a workplace drug and alcohol strategy.
The strategy should include raising awareness about the consequences of drug and alcohol misuse, and a policy on how the employer will respond to employee substance misuse.
Podcast: Substance misuse in the workplace
XpertHR employment law editors Ellie Gelder and Qian Mou discuss employer approaches to substance misuse and recent cases on the issue.
As part of the strategy, employers should provide line managers with specialist training to handle conversations about substance misuse.
2. Provide support to employees with drug or alcohol issues.
Employers often jump straight to disciplinary action when an employee has misused drugs or alcohol in the workplace.
This may be the right response in a safety-critical environment, but in many cases, it will be more appropriate to support an employee while he or she receives treatment.
Employers can support workers by making adjustments to an employee’s role or work hours, authorising an employee to take sickness absence, or referring an employee to external specialists or support groups.
An employer can also agree to suspend discipline if an employee goes through a course of counselling or treatment.
3. Set out any drug or alcohol testing requirements in employee contracts and in a workplace policy.
Employers should carefully consider whether or not drug or alcohol testing in the workplace is necessary.
Testing for employees in safety-critical environments will usually be justified by the health and safety of the employee, their colleagues and the public.
Substance misuse: more resources
If an organisation decides to implement testing, the first step is to set out the employer’s right to test and the justification for testing in employee contracts and in a workplace policy.
Employers should make clear the consequences of refusing or failing a test; usually it will be a disciplinary matter.
4. Apply testing fairly across employee groups, including management employees.
Employers should ensure that they do not select staff to be tested based on any protected characteristics, such as age or race.
Employees subject to testing should also be treated fairly; individuals – including members of management – should not receive favourable treatment related to testing.
In the recent case of Dyson v Asda Stores Ltd, an employment tribunal upheld the dismissal of a warehouse manager who was required to take a drug test after an anonymous tip.
The management employee, who had an exemplary record, refused to take the test out of pride and was dismissed as a result.
The employment tribunal found the dismissal to be fair and said that many employers would have done the same.
5. Where drug or alcohol misuse is suspected, conduct a full investigation.
As with other forms of disciplinary action, employers should conduct a full investigation into any allegations of substance misuse, including investigating the possibility of false test results.
In Bailes v First Bristol Ltd, a bus driver was awarded £83,910 when his employer failed to investigate whether or not the employee’s drug test was contaminated by cocaine on the cash that he handled.
Employers should also remember that failure to follow the Acas code of practice on disciplinary and grievance procedures, including the requirement to conduct an appropriate investigation, can lead an employment tribunal to award up to 25% extra in compensation to an employee.
In Bailes, the tribunal gave the claimant a 20% uplift for failing to investigate the possibility of a false test result due to cocaine on cash.