Drug Taking and Drinking
Drug addiction, like alcoholism, should be treated as an illness. However, employers usually treat drug taking as misconduct. This is because drug taking, unlike alcohol, can be a criminal offence and employers can commit an offence under the Misuse of Drugs Act 1971 if they know that illegal drugs are being used or distributed on their premises.
In the past, Employment Tribunals have usually found that dismissal is a reasonable response to drug taking or being under the influence of drink or drugs at work. However, there is an increasing trend towards treating long-term alcohol and, to a lesser extent drug taking, as an illness. Many employers have adopted a specific policy for dealing with alcohol and drug related problems. These may include taking time off for medical treatment.
However, where an employee recklessly comes to work having been drinking or under the influence of drugs, dismissal is likely and will be held to be fair, especially where the work in question is particularly sensitive, such as where there may be a risk to others.
Factors that a Employment Tribunal are likely to take into account include: whether the conduct was on or off duty; safety at work; contact with children or young people; the effect on the employer’s reputation and business, and the illegality of the employee’s actions.
Off-duty conduct will not usually merit dismissal in itself, although it may if it affects the employee’s ability to do the job or the employer’s reputation. Even if the employee has been convicted of a drug offence, the employer must conduct a proper investigation before dismissal; otherwise it will be unfair as there may be circumstances which lessen the severity of the offence.
Personal problems causing temporary drug taking or drinking have sometimes been seen as a factor that employers should take into account and restrict themselves to a warning rather than dismissal. Employment Tribunals often accept that an employer is entitled to assume that there is a safety risk in drug taking or drinking without there being any evidence. A worker who faces disciplinary charges connected with drugs or alcohol would do well to provide evidence that there was no safety risk.
The Transport and Works Act 1992 creates a number of criminal offences aimed at workers controlling vehicles – trains, trams, and so on – whilst being unfit through drink or drugs. In some workplaces, for example there may be an absolute prohibition on possession of alcohol or drugs.
Drug and Alcohol Screening
Testing may not be carried out without the employee’s consent. Consent may be obtained by making it a standard term in the contract of employment that employees consent to such tests. Random drugs screening and subsequent dismissal for a positive result has been held to be fair and not a breach of the right to a private life, however, the full factual circumstances will be relevant when deciding whether such a programme is fair in any particular case.
The employer may require employees not to have any trace of the prohibited substance in their bloodstream. This gives rise to particular problems when applied to drugs, as some soft drugs are detectable for more than a month after consumption. It is doubtful whether dismissal would be justified in circumstances where drugs have been consumed off duty and give rise to no impairment in performance, and where no breach of the criminal law is involved.