At the height of the festive season, the office party can create a headache for employers – even if they have not touched a drop of alcohol. And illegal drug abuse must also be taken into account. Substance abuse in general is of great concern with regard to the health, safety and welfare of staff.
But good planning, supported by training and communication on the standards of conduct required of everyone at work, can help to ensure that everyone celebrates safely.
The employer has duties and obligations under the Health and Safety at Work Act 1974 (HASWA) and other legislation such as the Management of Health and Safety at Work Regulations 1999 (MHSWR). There are also obligations under other laws including the Road Traffic Act 1988 and the Transport and Works Act 1992. These stipulate that drivers must not be under the influence of alcohol while driving. Under the Misuse of Drugs Act 1971, it is an offence for any person to knowingly permit the production, supply or use of controlled substances on their premises, except for those prescribed by a doctor.
There are also industry-specific regulations covering particular sectors. For example, within the travel industry, there is the Railways (Safety Case) Regulations 2000 (as amended April 2003), the Railways and Transport Safety Act, 2003 – Aviation: Alcohol And Drugs, and the Aeronautical Information Circular 58/2000, Medication, Alcohol and Flying. Such industry-specific regulations require employers and operators to use all due diligence to ensure that their workers are not unfit for work due to alcohol, drug or other substance abuse.
The Air Navigation Order (ANO), which sets out specifications for flight crew and other safety-critical personnel, can serve as a valuable basis for most other occupations in terms of clarifying an employer’s viewpoint on drug and alcohol misuse at work. It states: “The effect of intoxication, through alcohol or drugs, on aviation personnel has significant safety implications. The ANO, which is the main aviation safety regulatory legislation in the UK, provides that no member of an aircraft’s crew, a licensed maintenance engineer or an air traffic control officer shall be under the influence of drink or drugs to such an extent as to impair his/her capacity to act.”
Employment policies should be in place to ensure that staff in all workplaces know the standards expected of them and their colleagues. All employers should have comprehensive policies covering substance abuse in general, covering drug abuse, (including solvents) as well as alcohol.
Employment policies need to be cohesive and comprehensive to tackle this potential problem.
Standard policies should cover:
- Discipline, grievance and appeals
- Alcohol and substance abuse
- Anti-discrimination/dignity at work
- Health and safety
- Health surveillance
- Random and routine drug and alcohol testing – it is also wise to make reference to this in the contract of employment
- Sickness and absence management.
Employees can assume that parties are ‘off-duty’ time, and as such they may think they have no accountability to the workplace disciplinary rules. But employers and courts do not see it that way. There are implications to consider, including misconduct that takes place off duty and/or off the premises, where it impacts upon the business. In addition, there is also the serious issue of vicarious liability, where the employer can be held be responsible for the acts of its employees.
Employers need to ensure that workers know and understand the standards of conduct required of them when they are at work, and when they are off duty, and that their conduct when off duty could nevertheless give rise to disciplinary action and sanctions.
Similar problems arise when the business meeting or party takes place off the premises. Is this an employment-related matter or not? Factors that the courts would consider in this light might include whether the employer organised the event, whether the function was part of the business interest of the employer (such as sales dinners, client meetings, and of course seasonal parties), how funding for the event was organised, and who attended.
Aside from the usual hangover symptoms, there can be other unpleasant outcomes when celebrations go awry. These can result in various forms of misconduct with varying degrees of seriousness.
The most common examples of misconduct that arise when spirits – especially those of a liquid nature – are over-indulged, include fighting, sexual harassment, other forms of harassment, discrimination or bullying, and lateness, mistakes and omissions in the performance of the work following the Christmas party.
Other unwanted results can include absence, sickness, injuries caused by accidents or pranks, and damaged working relationships.
Random or routine drug testing can lead to an employee facing a disciplinary investigation. In these circumstances, one logical assumption might be that the drugs were used for ‘recreational purposes’, meaning indulgence while off duty and at a private event of some kind. Whether this then gives rise to a justified cause for disciplinary sanctions will depend upon a number of factors, including a breach of stated disciplinary rules, a breach of health and safety, damage to the employer’s reputation, the nature of the job and its contractual terms, and the employment relationship’s essential trust and confidence.
Getting it right
As always, even in the best regulated circumstances, things can still go wrong. And when they do, employers must ensure there is full compliance with the Statutory Dispute Procedures, which took effect from October 2004. Internal procedures must follow the set standards in any disciplinary or appeal proceedings, and in complaints or grievances made by employees. Both staff and employers need to follow these steps carefully, otherwise the outcome of any tribunal claims could be affected.
Careful planning, good policies and training can stop most of these potential problems from happening in the first place. If staff are informed of what is expected of them, people will do what is reasonably expected.
Together with a clear and consistent management approach, this will help to establish a workplace culture of safe, suitable and reasonable conduct for everyone – all year round.
References and resources
- IDS Brief, Incomes Data Services go to www.idsbrief.co.uk
- Health and Safety Executive go to www.hse.gov.uk
- Civil Aviation Authority go to www.caa.co.uk
Linda Goldman BDS, LLB and Joan Lewis MCIPD, MA (Law & Employment Relations consultants). Any enquiries may be made to Joan Lewis at email@example.com
Williams and others v Whitbread Beer Company Limited (1996), CA (IDS Brief 572)
The factors considered included: contributory conduct by the employees being drunk and disorderly, and mitigation arising from the employer’s condoning of the drinking, which led to the misconduct.
WBC had a two-day training seminar, attended by W, T and S, at one of its hotels. On the first evening, delegates were allowed to charge their drinks to their room bills, which were paid by their employer. W, T and S all had a lot to drink, and became rowdy.
One employee was abusive to a senior manager who had asked him to ‘tone it down’, and the other two had what could be best described as an ‘eventful’ evening. Matters eventually erupted into an argument, which led to T throwing his beer over S, who responded by swinging a punch at T. All three employees were dismissed.
The tribunal held that although the behaviour of all three was ‘deplorable’, their dismissal was outside the band of reasonable responses open to a reasonable employer. Their misconduct occurred outside of working hours, and had to be seen in the context of a heavy drinking session, paid for by the employer. The case went up to the Court of Appeal, which upheld the decision. However, the employees’ awards were reduced to take account of their own contribution – by their misconduct – to their dismissals.
Employers can require high standards of conduct and take a strict view of misconduct offences during any festivities in circumstances where there is a concern for safety or the welfare of others. In McGrath v Third Generation Nursing Homes (EAT 791/93), M was a registered nurse in a nursing home and was on duty on Christmas Day. The employer’s disciplinary rules listed drunkenness as an example of gross misconduct.
The deputy matron invited her and others who were starting or finishing their shifts to have a drink. Later that day, however, M was found to be drunk and incapable of doing her work, which involved responsibility for the care of patients.
The EAT upheld the employment tribunal’s finding that M’s dismissal was fair. Where employers dismiss due to off-duty drug-taking, other considerations may be necessary. For example, employers may argue that their reputation has been or will be damaged by the employee’s conduct, or that the conduct has undermined their trust and confidence in the employee. The EAT considered this in the case of Focus DIY v Nicholson EAT 225/94. At an office party held in August 1993, N was the most senior member of staff present. Another member of staff later complained to a senior manager that N had been smoking cannabis at the party. The employer took statements from various employees and interviewed N, who admitted that she had smoked a controlled substance at the party. She was subsequently dismissed.
The EAT held that N’s dismissal was fair, because by smoking cannabis in front of junior colleagues at a company function, N had damaged her authority as a deputy manager. Key factors in the decision turned on whether a reasonable employer might consider that the smoking of cannabis was a serious matter, which would have an impact on N’s ability to manage. The EAT believed that a reasonable employer could have taken this view, and that dismissal was within the band of responses open to a reasonable employer.
Power v Panasonic UK (2003), IRLR EAT
In this case, the question of alcohol and illness was tested. Alcoholism is excluded from the definition of disability under the Disability Discrimination Act.
The Act covers an addiction to or dependency on alcohol, nicotine, or any other substance (other than as a result of its being medically prescribed). But a disability caused by alcoholism can be included, such as pancreas or liver disease – provided it will have a substantial long-term effect on normal day-to-day activities. Many employers do treat alcoholism as an illness, provided the employee seeks and follows a clinical recovery programme, and provided that no disciplinary offence is committed.
O’Flynn v Airlinks Airport Coach Company (2002), EAT 10269/01
In this case, it was made clear that to show that a dismissal on the grounds of a positive drugs test was fair, a number of factors would need to be proven by the employer.
O, who was found to have used drugs, was not employed as a driver, but her job description did require that she might be required to park the vehicles on company property. In addition, the employer had a formal policy on drugs and alcohol, which stated potential penalties for positive test results. The contract of employment should cover random and routine drug and alcohol testing, and should be consistently followed.
O was found to have been fairly dismissed, despite her defence that the drug misuse had been recreational and conducted during her weekend off duty.