Policy clinic: zero tolerance on alcohol and drugs

With the festive season almost upon us, now is the time to update drugs and alcohol policices, says Nick Thomas

With Christmas just around the corner, we’re already seeing the annual flurry of articles warning of the pitfalls and politics associated with staff parties.

However, while the combination of festive cheer and significant quantities of alcohol gives rise to more than its fair share of employment disputes, it is becoming increasingly clear that alcohol and drug misuse is not just a seasonal problem.

In a recent survey from the Chartered Institute of Personnel and Development (CIPD), Managing Drug and Alcohol Misuse at Work, research concluded that drug and alcohol misuse is a significant cause of lost productivity. While the majority of employers have rules in place regarding the possession and/or use of drugs and alcohol, these are rarely comprehensive, and do not always provide an effective mechanism for tackling the problem.

It’s not surprising, therefore, that according to the CIPD, almost a fifth of employers are planning to introduce a combined policy on drug and alcohol misuse in the workplace.

What should a policy cover?

As a minimum, an effective drugs and alcohol policy should:

1)  Outlaw:

  • the possession and/or consumption of illegal drugs in the workplace
  • attending work while under the influence of drugs and/or alcohol

2)  Restrict:

  • the consumption of alcohol in the workplace to appropriate social or quasi-social situations
  • the possession and use of prescription drugs in the workplace (requiring the employee to inform their employer about such drugs and to provide confirmation from their doctor as to any possible side effects).

Ensure you are consistent with, and refer to, your disciplinary policy, making it clear that a breach of the drugs and alcohol policy is likely to result in disciplinary proceedings which may lead to dismissal.

Decide whether to treat all instances of drug or alcohol abuse as disciplinary matters, or provide support to those who have problems with drug or alcohol dependency.

Many policies provide for specialist counselling and/or occupational health support to be given. This approach tends to be considered where there are concerns about the impact of such dependency on the employee’s performance and/or health. It is not generally appropriate where the concern relates to a one-off or serious incident of drug or alcohol-related misconduct.

Testing and enforcement

Another issue you may wish to address is drug and alcohol testing. Twenty-two per cent of respondents to the CIPD survey claim to carry out such testing. However, the law in this area is complex. Testing “for cause”, where an employee is tested because of their involvement in an accident or other workplace incident, is more common, and is acceptable in a range of situations. However, a policy of carrying out random drug tests is only likely to be appropriate for employees working in safety critical roles.

Where there is compelling witness evidence that a person is inebriated, or a drugs test proves positive, you should be able to issue a disciplinary sanction. However, it may be risky to dismiss an employee for simply having traces of drugs and/or alcohol in their system where they may have been consumed outside of work time. Unfortunately, witness evidence is not always available, and a problem may arise if an employee refuses to submit a test.

You cannot force an employee to take a test, so you may instead rely on their refusal as grounds for a disciplinary sanction and/or dismissal. While there is an absence of clear authority on the point, it seems likely that a tribunal may consider it reasonable for an employer to draw an adverse inference from such a refusal, particularly if the employee had agreed to testing as part of the terms of their employment.

You may also argue that failing to punish such a refusal would effectively undermine the whole testing policy and encourage other employees to refuse future tests. Ultimately, a refusal is only likely to provide safe grounds for dismissal where a tribunal is content that the policy of drug testing is itself proportionate and reasonable, taking into account the role of the employee and the environment in which they work. Where an employee’s role is not safety critical, this is likely to be a more difficult hurdle for an employer to overcome.

Steps to implementation

It is not strictly necessary for the policy to form part of the terms and conditions of employment, so it can be introduced at any time without the need for individual employee agreement. Where you may wish to carry out drug or alcohol testing (particularly random testing) it may be advantageous to make express reference to this in the contract itself. This approach is certainly recommended when issuing contracts to new employees.

The key to implementing a drugs and alcohol policy is effective communication. As with any new policy, its introduction should be well publicised to the workforce using a combination of e-mails, internal memos and staff notices. Such communications should stress the significance of the policy and, where practical, require each employee to confirm that they have read and understood it. This will be extremely helpful if you wish to rely on an employee’s breach of the policy during a subsequent disciplinary process.

Ultimately, there is no simple solution to the problem of drug and alcohol abuse. Implementing a comprehensive policy will at least provide you with a starting point from which to tackle the problem.

Nick Thomas is an associate at Jones Day

This is how we did it

Petrol giant Shell strives to ensure that the workplace is free from the effects of what is commonly called substance abuse; the use of illegal drugs, the misuse of legal drugs or other substances, and the abuse of alcohol.

Its drug and alcohol policy applies to all employees and contractors, but with particular emphasis on those who work at or visit safety-sensitive sites and/or hold safety-sensitive jobs, where the risks are greatest.

The policy includes standards of behaviour – employees should be fit and ready to carry out their work duties at all times, except where authorised for special occasions. Alcohol is not permitted during working hours on company sites, although some sites have also been designated alcohol-free at all times. The misuse of legal drugs is prohibited, as is the use, possession, sale or distribution of illegal drugs.

Shell also believes in education and awareness and has medical advisers and occupational health units with readily available information and advice, drugs and alcohol awareness booklets and videos.

There’s a rehabilitation programme to help employees before drug or alcohol dependency affects work performance. Staff who believe they have a problem are encouraged to ask their line manager or medical adviser for support. Drugs and alcohol are recognised as an ill-health condition; anyone who voluntarily discloses a dependence will be helped.

Testing for evidence of substance abuse is undertaken where there is good reason to suspect it, such as a particular incident, abnormal behaviour or appearance, or absence problems. Testing procedures are carried out with the individual’s consent. However, the failure of an individual to consent to a ‘with cause’ test will be considered serious misconduct. Searches may be conducted where there is good reason to believe that drugs or alcohol have been brought to the workplace or are in an individual’s possession. This might include a search of personal effects, desks, lockers and other company property. The failure of an individual to consent to a search will be considered serious misconduct, as will the discovery of drugs or alcohol.

More information about Shell’s policy can be found in the publication Addiction At Work, go to www.personneltoday.com/32684.article

How to implement an alcohol/drugs policy

  • Communicate the policy to all staff.

  • Obtain confirmation from staff that it has been read and understood.

  • Add the policy to the staff handbook/intranet.

  • Inform new recruits of the policy during induction.

  • Where possible, train staff on the subject.

  • Make express reference to any policy of testing in all new contracts.

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