You would assume that you’re well within your rights as an employer to sack anyone found to be using drugs or alcohol at work.
The Equality Act 2010 protects disabled people from discrimination or harrasment - a disability being defined as a physical or mental impairment which has a substantial and long-term adverse effect on someone’s ability to carry out normal day-to-day activities. Addiction is expressly excluded from this definition (unless it arose as a result of taking medically prescribed drugs or other medical treatment).
But it’s a grey area. A dismissal could be still be considered discriminatory if there is an underlying or related issue amounting to a disability, and reasonable steps were not taken either to establish this, or to provide adequate support for the employee.
Addiction may cause a condition which is itself a disability, or, may be present because of an underlying disability - for example both depression and liver cirrhosis have been recognised as disabilities where they arose from alcohol or drug use. It is harder for employers where addiction is a manifestation of a disability. The courts will examine closely the reason for the treatment of the employee and whether it was because of the underlying disability, or the addiction.
Even where there is no disability present, if the employee suffers from a substance addiction and that has contributed to their behaviour, employers should carefully consider their options before moving to dismiss.
So what should you do?
The ACAS guide to discipline and grievances at work suggests that consideration must be given to measures to help those employees suffering from drug or alcohol abuse and, failing that, at least consider what help could be put in place as an alternative to a disciplinary sanction.
Whilst being drunk or under the influence of drugs is likely to constitute misconduct, or gross misconduct justifying dismissal, an employer can’t automatically assume that there will be grounds for termination.
In McElroy v Cambridgeshire the Employment Tribunal held that the summary dismissal of a healthcare assistant for coming to work smelling of alcohol was unfair and not the actions of a reasonable employer in the absence of evidence. But, in another case - Asda v Coughlan - where the employee was found in possession of cannabis at work, dismissal was reasonable. The fact that the substance is legal or illegal is likely to be a relevant factor to take into account in determining sanction.
It may also be appropriate in some circumstances to suspend disciplinary action on the condition that the employee follows a suitable course of action, such as rehabilitation.
What is clear is that just because drugs or alcohol are involved, it doesn’t negate the need for thorough investigation, just like any case of alleged misconduct or poor performance. In addition, the employer should consider seeking a medical report to establish the true medical position, particularly if the employee has an underlying disability.
Employers could consider offering the employee time off to seek medical help. If doing this, it is important to consider how that employee will return to work. Advice should be taken from the employee’s treating physician, and a phased return to work may be necessary.
It is recommended that all employers include relevant policies in their staff handbook, including appropriately worded disciplinary policies, a health and safety policy and a drug and alcohol misuse policy, including any drug testing provisions which apply.
Companies should also consider the type of support they may wish to offer those suffering with addiction issues, including time off, medical treatment and support packages.
Sarah Chilton is an employment and partnership lawyer with CM Murray LLP. She spoke about "Addiction in the workplace: corporate risk, human frailty and legal arguments" at iCAAD London 2019.
Image credits: Edmund Lowe Photography/gettyimages