Introducing a drug and alcohol abuse policy will not be straightforward as employees are wary of their justification, but it is essential when employees are in safety critical positions.
Alcohol and airline pilots do not mix. Unfortunately, high flying though they may be, pilots are still human. According to one industry insider, the pressures of working life – frequently away from home on stop-overs with little to do but take advantage of local hospitality – means both male and female crew may find themselves turning to the bottle for diversion and support.
However, while the case of Virgin Atlantic’s Captain Harwell is now subject to judicial procedure in Virginia, US, the creation and subsequent policing of drug and alcohol abuse policies is not restricted to the airline industry. Last month, the RMT threatened industrial action in response to the dismissal of seven Metronet Rail employees when more than 100 cans and bottles were found on premises used by a core group of track workers in London’s Farringdon area.
The workers passed subsequent alcohol tests, but Metronet claims the dismissals were justified under the company’s Drugs and Alcohol Standard, which requires employees to avoid covering up or colluding with colleagues whose behaviour and performance may be affected by such substances. Both sides have now agreed to take the case to an employment tribunal.
There is clearly a need to ensure that transport-related safety critical staff are always free of the effects of drugs and alcohol when they carry out their work. But there are many other industries where the sobriety of employees should be set at a premium – from the health service through to the manufacture of electrical components.
However, drawing up and policing a drug and alcohol abuse policy is not straightforward. Identifying best practice is even more problematic as employers are wary of discussing the issue.
Malcolm Pike of law firm Addleshaw Goddard says since safety is the number one priority for airlines – a selling point that takes precedence over price – they are keen to ensure their reputation remains unblemished. “It’s not just a case of looking after the passengers, but the damage to reputation can be immense as well,” he says.
There is no legal limit in the UK to the level of alcohol a pilot, a transport worker – or any other employee – can have in his or her blood when working. The only legal limits that exist in criminal law are those that apply to driving on the UK’s roads. That said, employers and industry bodies can establish levels through codes of practice or employment contracts.
In the airline industry, maximum levels appear in the Joint Aviation Authorities’ (JAA) 1998 JAR-OPS requirements and recommendations document (20mg per 100ml of blood) and through a neat piece of logic these apply to British pilots: pilots must comply with JAR-OPS to hold a JAA licence. The UK’s Air Navigation Order 2000 stipulates all UK pilots must hold a JAA licence. Therefore all UK pilots must comply with JAR-OPS.
This will change when secondary legislation from the Railways and Transportation Safety (RTS) Act establishes legal levels for pilots and transport staff in safety critical positions, as well as identifying an effective way for testing these levels. At least it will when the Home Office has decided on an effective and reliable testing technique.
In addition to this, in the UK, the Information Commissioner’s Employment Practices Data Protection Code Part 4 will permit employers to test their staff for the influence of drugs as long as there is sufficient justification for doing so.
“For pilots that won’t be a problem,” says Pike. “Or indeed for aircrew in general. It may be more difficult to justify such tests for ground crew.”
But even with this justification, employers cannot expect a smooth ride when it comes to such tests. The TUC has warned that excessive testing can be linked
to adverse effects on workforce productivity and health. The code should be toughened up, says Brendan Barber, “to make sure tests are only used when absolutely necessary”.
Random drug and alcohol testing already exists in the airline industry. Carolyn Evans, head of flight safety at the British Air Line Pilots’ Association (BALPA), says tests are carried out under some US employment contracts. The US Federal Aviation Administration (FAA) requires employers to administer such tests at several stages of the pilot’s career: pre-employment; reasonable suspicion; random; post-accident; reasonable cause; and follow-up. Evans says these tests were introduced as part of the response to the Exxon Valdez oil tanker disaster in 1989.
BALPA does not directly oppose random testing. “We have experience of random testing in the industry and we’re not satisfied that it is effective,” says Evans. “It’s incredibly costly for the companies involved.”
BALPA’s cost concerns could be viewed as a neat excuse, but they may be justified given the extensive work that must be done to establish an effective testing regime. Even if the law was to be changed specifically to enable random testing in the UK, any company doing so needs to invest in professional and reliable technology.
Having done that, there is a huge amount of employment policy to be written and communicated to employees if the practice is to be watertight. According to Andrew Knorpell, an associate in the employment law team at asb, employers that introduce any kind of testing must make it clear why the testing is taking place, what precisely is being tested, how the outcomes will be used and any action that may be taken as a result.
And that’s not all, says Knorpell. “Your disciplinary policy should make it clear that being under the influence of alcohol or drugs at work is an offence. But it should also be clear that taking drugs or alcohol outside work is not relevant – unless there are circumstances where doing so could impinge on the work itself.”
If an employee works as a drugs or alcohol counsellor, for example, there could be serious repercussions for their employer if they were found drinking or taking drugs in their own time. But for some organisations there is not a straightforward dividing line between when one can and cannot take drugs.
“Some organisations might have a policy that says it is OK to drink on company time in certain situations,” says Knorpell, “but do not do or say anything that will bring us into disrepute.”
Rather than taking the testing option, BALPA believes the best solution is peer intervention. This means establishing a programme whereby employees, work colleagues and even friends can come forward and raise concerns they have about colleagues. Those people can then be treated without losing their jobs. Such a system is running in the US through the Air Line Pilots’ Association (the US version of BALPA) and it works, says Evans. “No one wants to report to work with someone incapable of doing their job. They want to help people remain in their job and remain professional. If they do slip up they want to help get them back on the rails.”
But Daniel Natfalin at Mishcon de Reya is sceptical that this would happen given the UK’s working culture. He makes a comparison with cases of harassment and discrimination. “Every company has a policy that says that if you as an employee see harassment or discrimination occur then you have a duty to report it,” he says. “I have never come across one instance where an employee has reported someone else’s actions. People do not report their colleagues. They don’t want to get involved.”
Such programmes may be perceived to undermine the message of zero tolerance. After all, if an individual reports their colleague has been under the influence of drink or drugs, and the action taken against that colleague is to offer them a programme addressing and managing their condition, then does the zero tolerance threat – drunk on duty, lose your job – actually mean anything?
To some extent, this situation already exists under the current system for the UK airline industry. UK pilot licences are issued by the Civil Aviation Authority (CAA) and a pilot can only hold a licence if they successfully complete a medical. The regularity of both licence renewal and medical is dependent on the pilot’s age and the licence they hold. A CAA spokesperson says these medical examinations can occur as regularly as every six months for a pilot with the highest licence aged over 40.
“It’s normally felt that if someone did have a serious drink or drug issue it would be apparent,” says the spokesperson. “We then have an outside consultant who would see the pilot and their medical would be suspended – effectively grounding them.”
The rehabilitation process differs from individual to individual, but if the pilot wants to return to flying he or she will need to pass their medical and then work for a year or so under the supervision of another pilot. With that probation period successfully completed, the pilot will be fully reinstated. “We don’t pay for the rehabilitation process,” the spokesperson says, “we simply say if you want your licence back then follow these things and we will do it.”
In September 2003, the UK’s Health and Safety Executive introduced new guidelines governing every employer’s responsibility for employees who drive. The likely introduction of the Corporate Killing offence, together with these new responsibilities, means all employers must consider their policies and processes surrounding the fitness of their employees to get behind the wheel. Alcohol awareness must be a part of this because there is the possibility that if an employee is drunk on a business journey, it will not just be him who pays dearly.
Unless employers take demonstrable steps to ensure everyone understands their policy on drugs and alcohol errant employees may not be alone when it comes to criminal prosecution.
UK law
The Railways and Transport Safety (RTS) Bill became an Act of Parliament in July 2003. It gave the Government the authority to introduce secondary legislation to (1) specify an alcohol limit for pilots and other safety critical personnel in the aviation industry and (2) establish a testing regime.
The legal limit will probably be 20mg per 100ml of blood – compared with the current driving limit of 80mg per100ml. No date has been set for the secondary legislation, although it is expected to be law by the end of this year.
Information Commissioner: The Employment Practices Data Protection Code: Part 4: Information about Workers Health.
Currently in draft form at: www.informationcommissioner.gov.uk/eventual.aspx?id=245
Among the code’s recommendations are:
Any test should be fully justified and proportionate to the nature of that justification
Samples must not be taken covertly
An impact assessment should be carried out alongside the testing programme – does the testing have a positive or negative effect on the performance of staff and the reason for the test.
The skies are safe
No air accident has been attributed to a pilot or crew member being under the influence of drugs or alcohol.
Figures from the US’s Federal Aviation Administration say that there were five positive results among 10,257 pilots tested in 2000. However, violations have increased since then: in 2001 there were nine violations, 2002 there were 22 and by 18 November 2003 there had been 18.
The Human Intervention Motivation Study (HIMS) was born out of a grant from the National Institute for Alcohol Abuse and Alcoholism in the early 1970s. It found a success rate of between 92 per cent and 95 per cent for rehabilitating pilots with alcohol-related problems. The rehab process was cost-effective. In 1990, the grant money ceased but the US airline industry has continued the programme.
Under the programme, employee peers, friends or family members can contact a HIMS representative at ALPA or through their Aeromedical Committee. There are then four steps to the programme:
Identification: the individual concerned must acknowledge the problem.
Evaluation and Therapy: a minimum of 28 days on an inpatient treatment programme. Aftercare and outpatient treatment involves Alcoholics Anonymous sponsorship.
Testing, records, review: psychological testing is included in this process, ensuring all aspects of the individual’s case is addressed.
Peer pilots: peer pilots give advice and assistant to the recovering pilot on professional and personal issues that occur during the process.
BALPA is in talks with a number of UK airlines and the CAA to create a similar scheme in the UK.
Policy focus – British Airways
British Airways has a zero-tolerance approach to breaches on the strict rules governing flying duties and alcohol consumption. The airline implements the law in its Flight Crew Orders (FCOs) by specifying that:
Breach of FCOs 408 to 410 will be construed as gross misconduct, the penalty for which may be dismissal without notice or prior warnings.
408: alcoholic drinks must not be consumed by flying staff during the eight hours before reporting for a rostered operating, positioning service or while operating on duty. There should be no residual alcohol in the bloodstream when reporting for duty. To comply with the above, flying staff should only consume alcohol in moderation during the 24 hours preceding such duties. Positioning crew must assume that there may be a requirement to undertake a flying duty until they have been checked-in for the positioning service.
409: local state restrictions may be more severe than those laid down by British Airways, and in such a case the state restriction must be complied with.
410: alcoholic drinks must not be consumed by flying staff wearing uniform when they are on British Airways property or in public places. In this context, public places include aircraft and crew transport. No alcoholic drinks or unsealed bottles or unsealed containers of alcohol should be taken onto the flight deck at any time.
In addition, all crew receive a briefing sheet that includes details of the local rules on alcohol before setting out on a trip.
British Airways has its own in-house medical department and there is scope for any member of staff from any department to refer themselves for help, either directly or through their manager, in relation to any number of complaints or conditions.
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Specifically for flight crew, there is no excuse whatsoever for turning up for duty under the influence of alcohol, regardless of any real or perceived lifestyle or culture issues.
The regulations regarding the consumption of alcohol form part of the formal flying crew orders, but in addition, flight crew have been provided with information relating to the consumption of drugs and alcohol and this contains information relating, for instance, to the release of alcohol from the body.
