The recent antics of the England cricket team, coupled with the case of a British Airways pilot reporting for duty inebriated, have heightened the debate about an employer’s responsibility for an employee’s misuse of alcohol in the workplace. Increasingly, employers are finding that staff alcohol consumption outside work is causing a large proportion of discrimination and harassment complaints. You must therefore be aware of the issues and how to tackle them.
Q Can employers take disciplinary action for employees being drunk?
A Employers are entitled to take disciplinary action for the off-duty conduct of employees, providing there is a clear link between the conduct and the employer’s business interests.
Before taking any action, an employer must be satisfied that an employee’s conduct is threatening the business interests and must carry out adequate investigations. The case of Bartlett v Elegant Resorts (1995) held that although an employee had been warned about her drinking before a business function, her dismissal was unfair because the employer had not conducted a full investigation into the circumstances. The employee’s compensation was reduced by 50%, given her contributory behaviour towards her dismissal.
Where any dismissal is contemplated, an employer must implement the statutory minimum three-step disciplinary procedure to reduce any risk of an unfair dismissal claim.
Q Can employers take disciplinary action where employees’ drinking habits do not affect their work?
A Out-of-hours drinking in itself is insufficient to warrant disciplinary action, unless there is a clear link between the employee’s behaviour and the employer’s business. However, driving under the influence of alcohol, or causing an accident, injury or death, means that employers could be vicariously liable for the losses or injuries caused to others by their staff.
Q Should employers implement a policy on alcohol misuse?
A Yes, employers should implement a clear ‘zero tolerance’ written policy, covering the organisation’s attitude to consumption of alcohol or drugs, violence, unauthorised absence, harassment of colleagues and any other inappropriate behaviour amounting to misconduct. Employees must be made fully aware of this policy and employers must ensure it is enforced. Both must adhere to the policy to minimise the risk of both disability discrimination and unfair dismissal claims.
In Angus Council v Edgley (1999), an employer’s failure to apply a policy on alcohol abuse to an employee with an alcohol addiction rendered his dismissal unfair. It was inappropriate to treat his addiction purely as a disciplinary matter, given that the employer’s alcohol policy stated that employees would be given an opportunity to seek help and any disciplinary action would be suspended in the meantime.
Q Can an employee suffering from the effects of alcohol from socialising with colleagues claim that this is part of work culture?
A Socialising with colleagues could be part of the work culture and seen as part of the ‘fitting in’ process. However, if employers have a clear policy in place specifying what is acceptable behaviour and what amounts to misconduct, then employees will be in no doubt as to the misuse of alcohol amounting to misconduct.
Q Could employees be covered under the Disability Discrimination Act?
A Yes, employers must also be aware that alcohol misuse may be part of a wider issue, as a sign of an underlying disability, such as depression or organ damage. Alcohol addiction is itself not a disability and is excluded from the protection of the Disability Discrimination Act 1995 (DDA). However, the Disability Discrimination (Meaning of Disability) Regulations 1996 state that it is not necessary to consider how an impairment is caused for it to be a disability. There are apparent difficulties in the interpretation of the DDA in conjunction with the regulations, as to whether any addiction is a disability.
Q Are there any cases that clarify the law in this area?
A The case of Power v Panasonic UK (2003) discussed the issue of an employee claiming unfair dismissal and disability discrimination based on her alcohol addiction, which led to depression. If the DDA is to be followed there is no disability, and if the regulations are to be followed then there is a disability (depression) irrespective of the cause. On appeal, it was held that it was wrong to look at the cause of the impairment being the alcoholism, and the tribunal ought to have looked at the claimant’s depression when deciding whether she had suffered discrimination.
By Chris Cook and Umza Rabi, solicitors, SA Law