Employers and Substance Misusing Employees - Key Issues:

Be Prepared

• It is better to have a well-thought out policy which is actively up-dated and implemented, than to wait until an incident happens and attempt to fire-fight. Employers are advised to formulate and advertise clear policies setting out their attitude to substance misuse and to apply them consistently. Policies should be tailored to the needs of the individual workplace, and safety-critical industries will need to be particularly careful to balance the need for public safety with the rights of the individual involved in substance misuse. An intelligently designed policy can support both public safety and individual rehabilitation, where appropriate.

• In other words, what the employee does in their own time is none of the employer’s business, until and unless it impinges on their work performance. An employee has a right to privacy, and if this is breached they could mount a claim for discriminatory practice or constructive dismissal.
• However, if the alcohol / drug taking occurs at work, or its effects impinge on work time performance, action should be taken.
• Any suspected cases of alcohol or drug-related behaviour should be fully and impartiality investigated and substantiated before any action is taken. The employee should be given the opportunity to advance an alternative explanation for the behaviour, which should be considered.

• Single incidents of alcohol / drug-taking or affected performance should be classed as conduct issues, and disciplinary procedures invoked, in accordance with any statutory requirements.
• However, if the employee is alcohol / drug-dependent, this should normally be treated as a medical condition, and procedures for managing capability or performance should be followed. Failure to manage dependency or suspected dependency properly could again result in a claim of discrimination or unfair dismissal.
• Offering assessment for drug / alcohol dependency enables the employer to change the balance of advantage away from denial and in favour of openness. This can greatly assist both parties and lead to an outcome favourable to both.

• It is important to act with discretion and to afford the employee all reasonable confidentiality when dealing with allegations of alcohol or drug use and / or dependency and its management, in order to respect the terms and conditions of trust and confidence implicit in any contract of employment.