Five mistakes employers can make managing an alcohol dependent employee

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Enjoying a drink with clients or colleagues can be a positive part of working life. Business deals are commenced and concluded over a glass of wine.  However, some employees are not able to follow the “enjoy in moderation” maxim and this can lead to issues for employers in managing alcohol dependent employees.

There are two main problems associated with alcohol abuse in the workplace: alcohol-related absenteeism and the effect on productivity and safety.

Laura Livingstone. Partner at Gordon Dadds.
Laura Livingstone. Partner at Gordon Dadds.

Let’s look at five mistakes employers can make when managing an alcohol dependent employee.

Testing without justification

Alcohol testing is an invasive procedure and therefore employers should exercise caution and avoid testing employees unless it requires indisputable evidence that the employee is under the influence of alcohol at work. Employers should be wary of conducting frequent ad hoc tests without reason due to the effect this will have on employees’ morale and general cooperation.

Employers should obtain written consent from employees for each alcohol test

Employers should have a clear justification for the testing.  In certain professions such as the police, random testing is justified given the type of work carried out.  Employers would also be justified in doing so where health and safety is a consideration, for example where employees drive vehicles as part of their duties.  The procedure, grounds and frequency of testing should be included in an Alcohol and Substance Abuse Policy.  This policy should also explain what will happen if an employee refuses to consent to an alcohol test or tests positive.  A failure to consent is usually treated as a positive result but this must be made clear to employees.

Overlooking a disability

Employers can sometimes fail to recognise that alcohol abuse may be disguising an underlying disability, such as long term depression.

The Equality Act 2010 (EqA) prohibits employers from discriminating against their employees in respect of a disability. According to section 6(1) EqA 2010, “a person (P) has a disability if P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.” While an addiction to alcohol on its own is an excluded condition for EqA purposes, there may also be an underlying disability which is protected.

In Power v Panasonic, the Employment Appeal Tribunal held that depression caused by a dependency on alcohol would not be prevented from being a disability simply because addiction to alcohol is excluded from the definition of disability under the EqA.

Employers should therefore take steps to look behind the alcohol use to see if there is a genuine disability in play before taking disciplinary action. It may mean that adjustments will have to be made such as counselling or recommending Alcoholics Anonymous.

Dismissing an employee without due consideration

An employer must act reasonably in deciding whether to dismiss an employee on grounds of their alcohol dependency.

In McElroy v Cambridgeshire Community Services NHS Trust, the Employment Tribunal held that the dismissal of an employee who arrived at work smelling of alcohol was unfair. This was on the basis that there was not sufficient evidence that the employee was incapable of functioning effectively at work nor that he was unfit for duty.

This case also highlighted the importance of following a disciplinary procedure where it appears that an employee has problems with alcohol in order that matters are properly addressed before reaching the ultimate conclusion.

Failing to have a clear Alcohol and Substance Abuse Policy in place

An Alcohol and Substance Abuse Policy is key.  This should set out clearly the employer’s approach to alcohol consumption.  For example what is expected of employees at work events or whilst on business trips?  Employees should be made aware of this policy upon joining the employer, it should be easily accessible during employment (for example on the employer’s website) and circulated whenever updated.

In Sinclair v Wandsworth Council, the employee turned up for work under the influence of alcohol on two occasions and was dismissed. The Employment Appeal Tribunal held that the dismissal was unfair and noted that the employer had failed to give the employee a copy of its alcohol policy or to follow the steps set out in that policy.

Failing to fully consider the facts

Handling an alcohol dependant employee is difficult but employers should be careful not to exacerbate the situation.

Employers can protect themselves from unfair dismissal and/or disability claims by taking time to step back from the situation, gather all the facts and seek medical advice where appropriate. Counselling and support for employees should also be considered (particularly those with other underlying problems) before an employer launches into a disciplinary procedure and/or dismissal.

Laura Livingstone is Head of Employment at Gordon Dadds.

 

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