Managing incapacity: drugs and alcohol
Section 7 of the Personnel Today Management Resources one stop guide on managing incapacity. Other sections.
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Draw up a company policy on alcohol and drugs Understand the purpose of screening of applicants and where it is appropriate Define limits and potential
disciplinary actions to be taken |
Addiction: how big is the problem?
No-one wants to be a killjoy, but employers generally agree that over indulgence of any variety can cause problems in the workplace. If an employee is too fond of the chardonnay or cocaine, it may affect their attendance, concentration and ability to do their job safely and the cost to UK business of this problem can be enormous.
Sources estimate that up to 14.8 million working days are lost each year as a consequence of drinking and this constitutes between 3 per cent and 5 per cent of all absences and this seems to be a growing problem - in 1998, the Chartered Institute of Personnel and Development found that alcohol-related problems had risen among personnel workers by 11 per cent since 1996 and reports of illegal drug taking had risen by 3 per cent. In fact, recent estimates calculate that up to 40 per cent of the workforce under 40 have experimented with illegal drugs, rising to almost half of those under 30.
It would seem that the workforce is in a state of crisis and employers can attest to this with 18 per cent reporting problems with employees who took illegal drugs. Discovering these problems can also be difficult with over 70 per cent of managers finding out about drug and alcohol problems as a result of deteriorating work performance.
Enough of the urban myths; but there are some very serious issues at the heart of this problem.
There is the cost of absenteeism and accidents in financial terms. Studies have shown that employees with drug and alcohol problems are 10 times more likely to be absent than their sober colleagues and alcohol-related sickness alone can cost businesses up to £2bn a year. Health and safety problems are also a big risk. Again studies have shown that drug and alcohol abusing employees are three times more likely to have accidents than their colleagues. One in five accidents and more than 50 per cent of fatal accidents in the workplace are alcohol-related.
The main reason for being vigilant is, of course, that the law demands it. The employment contract cannot exist without the implied duty of trust and confidence being in good working order (see Sickness absence) and the employer has a duty to secure workers' health and safety in the workplace (see Health and safety of staff).
The two key issues for any employer are whether to have a policy and whether to test for drug and alcohol misuse, in accordance with any policy.
These issues are separate. Policies can have deterrent value without having to get involved in testing (which has complicated issues on privacy) and having to face up to the results. You must ask yourself whether you do really want to know what people do in the spare time? The only safe answer to that question must be only if it affects what they do at work.
Screening applicants
Many employers restrict their drug and alcohol screening to job applicants only. This is largely because there is no ongoing employment relationship that could be soured by asking a job applicant to take such a test. If the job applicant declines to undergo the test, the employer can draw its own conclusions.
Until recently, testing all the applicants for a job was reasonably straightforward. Provided the screening procedure was implemented in a non-discriminatory manner, employers could lawfully ask all applicants to take the test.
Since the publication of the Data Protection Code of Practice on Recruitment and Selection in March 2002, the situation has become more complicated. One of the code's specific recommendations is that vetting procedures should only be carried out at the 'appropriate point' in the recruitment process. The code suggests that employers should not comprehensively vet all applicants for a job but should restrict vetting to the one individual who is successfully selected - so you can test the one person you actually employ rather than a clutch of 15 hopefuls.
Screening current employees
Employers who want to test all employees should bear in mind that testing employees for drink and drugs is an undoubted intrusion of their privacy.
Testing is intrusive on two levels. First, when the employee gives a sample, often an observer has to be present to ensure there is no tampering. Second, the laboratory process itself could be intrusive since the analysis, if conducted too widely, may show up not only any illegal substances, but also whether an employee is pregnant or has any genetic predisposition to disease.
When considering the intrusion what springs to mind is the European Convention of Human Rights. Article 8 of the convention states that individuals have a right to respect for their private and family life, home and correspondence. This was incorporated into UK legislation by the Human Rights Act 1998.
At first glance, the Article 8 right to respect for private life might seem to present employers with an obstacle to introducing testing of all employees. However, the right is not absolute - if you can establish the necessary justification and show that the invasion of privacy is lawful and proportionate, you can probably get away with introducing testing.
So what counts as justification?
Statistics have shown that abuse of drink and drugs by employees creates significant dangers in the workplace. Under the Health & Safety at Work Act, employers have a duty to provide a safe working environment and thereby minimise the risk. Failure to do so could give rise to civil and criminal liability.
Introducing a testing policy
Many employers introduce a drug and alcohol policy as part of a wider overhaul of general HR policies.
A policy has more chance of success if it is realistic and proportionate. For example, if you decide to introduce a 'zero tolerance' drugs and alcohol policy make sure you don't make alcohol available to employees on site.
Clarity of communication is the key to the effectiveness of a policy. Methods of communicating a new policy can include: asking employees to sign for receipt of a new policy booklet; inviting employees to attend a seminar on the new policy, or; highlighting the policy on the intranet.
Employees are far more likely to support a policy (and therefore adhere to it) where it is clear that the policy applies to all staff from the most senior board member to the most junior trainee.
The purpose of any policy should be clearly stated, ie, to achieve a drug and alcohol free (and therefore safer) working environment.
The policy should clearly state the rules, including definitions of what amounts to inappropriate use and expected standards of behaviour. It must clearly state how any breach or positive test results, or refusal to take a test, will be dealt with.
The policy should set out the responsibilities of staff, colleagues and line managers (and may refer to the training provided to line managers).
The policy should confirm that the testing procedure will be confidential and fair and should explain what will be done with the test results, since these will amount to sensitive personal data for the purposes of the Data Protection Act 1998.
The policy should make it clear what kind of testing is intended, either:
'For cause' and 'routine' testing can usually be justified if sensitively handled. Random testing is much more difficult to justify and can often give rise to discrimination claims.
Finally, the policy should provide information, what constitutes a unit of alcohol and different classes of drugs, and also encourage employees with a problem to seek help. The employer should state the extent of its support for employees with addictions.
Biochemistry of testing
The timing of a test may actually affect whether or not detection of any substance is revealed. The period of time during which a substance may be detected by sample analysis will vary depending on a number of factors including the type of test used, the substance, the amount taken and whether or not the person is a regular or occasional user.
How effective a standard testing procedure is will depend on when the employee consumed the substance and what the employee has taken. For example alcohol levels in the blood fall rapidly after consumption within just a few hours whereas other drugs may stay in the body for longer periods of time.
How many people can truthfully say that they have never gone to work with a hangover? It is probably true to say that many employees believe their employer will be reasonably tolerant if they occasionally turn up worse for wear. This means that an employee may seriously under-perform the day after a major drinking session, but the chances of them being caught with high levels of alcohol in their blood may be remote.
Cannabis, however, remains detectable for many weeks. Therefore, someone who is otherwise a star employee may still be found to have traces of cannabis in their bloodstream for some time after taking the substance. Traces of cocaine may vanish after a couple of days.
Clearly, the biochemistry of the testing process should reflect the employer's priority. If an employer conducts a drug test on a Monday morning, an employee with a terrible hangover, unable to focus on their computer screen, may just scrape through the test if their consumption of alcohol was from Saturday night. However, an employee who smoked a cannabis joint some weeks previously, while on holiday in Amsterdam, may fail the test.
There is no real question here as to which employee is fit for work. Therefore employers need to decide what the purpose of their testing is and make clear to employees their position on substance abuse. Will any trace of an illegal drug be tolerated or does the employer have a zero tolerance policy? If a zero tolerance policy is not in place, what level of alcohol in the blood is acceptable for an employee in the workplace? Employers must be seen to be fair or employees will allege that double standards are operating.
Where does consumption take place?
An employer should also think about where the substance has been consumed. Clearly, alcohol and drug misuse on company premises is a serious problem and may be treated as gross misconduct. The possession of some drugs is illegal and an employer could be breaking the law by knowingly allowing drug-related activities in the workplace. However, where the use of illegal drugs has taken place outside the workplace and outside of office hours it is more difficult. If an employer takes issue with an employee's use of illegal drugs outside the workplace and outside of office hours, but this has no effect on their performance during working hours, it may be in breach of the employer's implied duty of trust and confidence.
All employees are entitled to a private life away from the workplace. Article 8 of the European Convention of Human Rights states that individuals have a right to respect for their private life. Although an employee of a private company will not be able to bring a claim under this right against their employer, they may be able to tag this onto their unfair or wrongful dismissal claim by alleging that their fundamental rights have been undermined. It is likely that a tribunal will consider this when deciding whether or not the company acted reasonably in disciplining an employee.
How are test results used?
The medical reports produced by the testing laboratory will amount to sensitive personal data under the Data Protection Act 1998. This is because they contain information relating to health. To process this type of information the explicit consent of the employee is required. Consent is required not only for the invasion of privacy (taking the test itself), but also for the processing of the sensitive personal data once the laboratory produces the report and sends it back to the employer for its review.
For this explicit consent to be valid, it is vital that the employees are told to whom their results will be sent and for what purposes the results will be used, and also the possible consequences for them.
Medical or disciplinary action?
An employer must decide how to treat the results of any testing procedure. An employer may decide to have the option of treating the drug or alcohol misuse as a health issue or a disciplinary issue depending on the circumstances.
A policy can be drafted that deals with both options. The employer should bear in mind that it may be very difficult for people to admit to themselves or others that they have a drug or alcohol problem. They may feel that there is a stigma attached to the drug or alcohol misuse and they may well fear reprisals if they admit to taking illegal substances. While the employer's freedom to act may be limited if it becomes clear that an employee has broken the law at work, the employer should let their employees know that as far as possible they will treat serious drug and alcohol misuse as a health issue rather than an immediate cause for dismissal or disciplinary action.
Taking the medical route is likely to be far less confrontational and will reduce the possibility of claims against an employer under the Disability Discrimination Act. Disciplinary action should really only be a last resort. An employer could be judged to have unfairly dismissed an employee whose work problems are related to drug or alcohol misuse if it has made no attempt to help the employee. Nevertheless, an employer may need to temporarily move an employee to another job if their normal work is safety critical.
Although the Disability Discrimination Act specifically excludes drug and alcohol addiction from its definition of 'disability', some of the effects of an alcohol addiction, such as cirrhosis of the liver, may fall within the scope of the Act. If an employee is suffering from any addiction-related disabilities, the employer will need to show that it has made reasonable adjustments, such as allowing him the flexibility to work from home or allowing him time off to have treatment. An employer must tread cautiously if it decides to invoke its disciplinary procedure in relation to his poor performance at this stage. The disciplinary procedure can go ahead, but the employer must be mindful of its obligations under the Act.
Where an employee has failed the drug test and the employer operates a zero tolerance policy to illegal substance abuse the employer needs to make sure it treats all employees fairly in relation to what disciplinary sanction is appropriate. However, the employer might also encourage an employee to seek help from the employer's occupational GP or a specialist drug agency.
The employer's drug policy should be explained to the employee to make them aware that:
Employers have to keep up with the times - society is changing and the attitudes have moved considerably even in past 10 years.
Home secretary David Blunkett recently re-classified cannabis from a Class B to a Class C drug and in most parts of the country, you will only be cautioned if found in possession.
In conclusion, employers should consider what they actually want to know - not rush into testing if they can achieve the same ends - a safer workplace - through other means. Do employers really want to be put in the position of being moral policemen to their employees?
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CASE STUDY
George's performance has deteriorated over the past year, with a significant number of absences and many occasions when his attention to detail falls considerably below the standard expected. Rumours abound that George has a drinking problem. Howard on the other hand is an exemplary employee. His attitude is positive, he works hard and the clients love him. He is a rising star at Audacious. Audacious Accounting has a drug and alcohol policy in place which includes provision to test employees. Both George and Howard have signed employment contracts where they consented to take part in the company's testing procedures. Audacious Accounting has recently arranged a routine drug and alcohol test of all staff. The test was conducted at 9am on a Tuesday morning. George arrived for work that day looking particularly dishevelled and red-eyed. Later that morning, a key client called to complain about the service George had provided. Howard arrived for his test his usual cheery and on-the-ball self. Having given a sample, he attended a meeting with a new target client. The meeting went particularly well, and the target later telephoned to advise that Audacious would be appointed provided that Howard personally handled the account. Several days later, Audacious received the test results. Howard failed the drug test because traces of cannabis were found in his urine. On questioning, Howard told his boss that whilst on holiday in Amsterdam 3 weeks earlier, he had smoked a few joints with friends. George just scraped through the test. Although alcohol was present, the level was only 34 micrograms per 100 millilitres of breath -which is just under the statutory drink driving limit of 35 micrograms which Audacious have set as their 'acceptable' level. What should Audacious do? MODEL ANSWER Key issues
Timing The timing of the test has clearly affected whether any substances have been detected. Due to when George and Howard have consumed their respective substances the results have been less effective than Audacious might have preferred them to be. The problem with alcohol is that alcohol levels in the blood fall rapidly after consumption whereas other drugs may stay in the body for longer periods of time. The result is that George has seriously under-performed the day after his drinking session but the alcohol levels of alcohol in his blood are remote and within the 'acceptable' level set by Audacious. Unfortunately for Howard, cannabis remains detectable for many weeks following its consumption and Howard, who is otherwise a star employee, has been found to have traces in his bloodstream some time after taking the substance. Purpose of the testing In this situation, the biochemistry of Audacious' testing process has not reflected its priority. It, therefore, needs to decide on the purpose of its testing and to make sure that staff are aware of its position on substance abuse. Where does consumption take place? Obviously, if George has a drinking problem and is consuming alcohol on company premises this is a serious problem and should be treated as gross misconduct. In Howard's case, the use of illegal drugs has taken place outside of the workplace and outside of office hours and is therefore more difficult to deal with. If Audacious takes issue with Howard's use of illegal drugs outside the workplace and outside of office hours and this has no effect on his performance during working hours, it may be in breach of the employer's implied duty of trust in confidence. All employees are entitled to a private life away from the workplace. Article 8 of the European Convention of Human Rights, which has been incorporated into the UK legislation by the Human Rights Act, states that individuals have a right to privacy. Although an employee will not be able to bring a claim under the Human Rights Act against their employer they may be able to tag this onto their unfair or wrongful dismissal claim by alleging that their fundamental rights have been undermined and it is likely that a tribunal will consider this when deciding whether or not the company acted reasonably in disciplining an employee. How are the test results used? The medical reports produced in respect of George and Howard by the testing laboratory will amount to sensitive personal data under the Data Protection Act 1998. This is because they contain information relating to health. To process this type of information the express consent of George and Howard is required. Consent is required not only to the invasion of privacy, ie, taking the test itself, but also to the processing of the sensitive personal data when the laboratory produces the report and sends it back to Audacious for review. For this express of consent to be valid, it is vital that George and Howard were told to whom their results would be sent and for what purposes the results would be used and the consequences for them of the processing of these results. Medical or disciplinary action Audacious must decide how to treat the results of its testing procedure. It may decide to give itself the option of treating the drug or alcohol misuse as a health issue or a disciplinary issue depending on the circumstances. This will depend on what the policy says. It should bear in mind though that it might be very difficult for someone like George to admit to himself or others that he has a problem. He may feel that there is a stigma attached to drug or alcohol misuse and may fear reprisals if he admits taking illegal substances. Taking the medical route is likely to be far less confrontational and will reduce the possibility of claims against the company under the Disability Discrimination Act. Disciplinary action should be really only a last resort. Audacious could be judged to have unfairly dismissed George, whose work problems are related to alcohol misuse, if it has made no attempt to help him first. So, since George passed the test, he has confessed to a serious alcohol addiction. Although the Disability Discrimination Act specifically excludes drug and alcohol addiction from its definition of 'disability', some of the effects of an alcohol addiction, such as cirrhosis of the liver, may fall within the scope of the 1998 Act. If George is suffering from any addiction-related disabilities, Audacious will need to show that they have made reasonable adjustments, such as allowing him the flexibility to work from home or allowing him time off to have treatment. Audacious must tread cautiously if it decides to invoke its disciplinary procedure in relation to his poor performance at this stage. The disciplinary procedure can go ahead, but Audacious must be mindful of its obligations under the 1998 Act. In Howard's situation, Audacious must decide what action to take. Howard is clearly a recreational drug user rather than a regular user and it may be the only occasion on which he has actually used drugs. The most appropriate action may be to explain to Howard that he has failed the drug test since the firm operates a zero tolerance to illegal substance abuse. Audacious can then use its discretion as to how to treat Howard, but it must be seen to treat all employees fairly. The most appropriate disciplinary sanction in this case may be a written warning. However, Audacious should also encourage Howard to seek help from the company's occupational GP or a specialist drug agency if it feels this is necessary. Audacious' drugs policy should be explained to Howard so that he is aware that:
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Section 1: Incapacity and the law
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