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Employment law guidance on handling addiction in the workplace

Posted on from Squire Sanders (Hammonds) LLP

Faced with the suspicion or admission that a member of staff has a drug or alcohol problem, most employers will suffer conflicting emotions - fear for the integrity of their business, perhaps sympathy for the employee struggling with his/her addiction, and anxiety about treading the right line in acting in response. Doing nothing is not an option, so as employer, what should you do next?

Addiction - misconduct or incapability?

If an employee commits overt misconduct in the course of his/her addiction, e.g. theft to pay for drugs, then that is clearly misconduct regardless of its cause. Nothing in its being a direct consequence of the addiction requires you to put up with this. But what about the underlying problem?

Especially if you have published rules prohibiting the possession and/or consumption of drugs or alcohol at work, it's tempting to treat this matter also as one of misconduct rather than illness. There is no rule of law that employers have to help those on their books struggling with drug or alcohol addiction, no absolute duty to make reasonable adjustments to accommodate their problems, and no obligation to tolerate sub-standard work or behaviours arising as a result. 

Despite that, ACAS and the Employment Tribunals encourage employers to treat addiction as an illness rather than a conduct question (though it's recognised that this is far easier in respect of alcohol than proscribed drugs, where the employee’s use or possession and/or an employer’s inaction could itself constitute a criminal offence).

Without overt misconduct, therefore, your best option is to seek to treat the addiction in the first instance as a capability question. You can then move to misconduct if the employee does not admit the problem or take the steps you reasonably require to address it, e.g. attending courses, taking medication, staying off the substances, etc.

The importance of policies in the workplace

Employers should maintain and publicise to their staff policies which set out their intended approach to addiction and dependency issues. Since one can never predict every turn such cases may take, that policy should be non-contractual to prevent it becoming a burden on the employer. However, a reasonable degree of detail and 'expectation management' can very usefully be incorporated. 

Sensible provisions include:-

  • that the employee is required to follow the terms of the policy if you are to agree not to treat the complaint as misconduct
  • that nothing in your willingness to treat the addiction as one of illness excuses any misconduct, even if caused by it
  • that the employee will permit you appropriate access to his medical records and ongoing treatment reports so that you can verify his progress
  • that any time off pursuant to the policy over and above his normal sick pay entitlement will be unpaid (or alternatively paid, as an incentive to the employee to stick to the programme, but only for so long as he does so – the choice is yours).

It's important, if there is such a policy, that it is followed so far as the circumstances of the case permit. Even if expressly non-contractual, a policy creates expectations (or why else have it?) and Employment Tribunals are likely to frown upon employers which depart from their own written intentions without good reason.

Can employers access employee medical records?

The details of an employee’s medical condition, obviously including any addiction or related illnesses such as cirrhosis or mental disturbance, are sensitive personal data under the Data Protection Act. They will also fall within the basic right to privacy included in the Human Rights Act. 

The Access to the Medical Reports Act can allow the employee to refuse his employer sight of his medical records and of most reports on his condition, so you may find it hard to obtain a clear picture of the nature or extent of your employee’s problems or to know whether you can act on that information even if you do.

In the great majority of cases, the employee’s right to the confidentiality and privacy of his medical data is overborne by the rights of the employer and potentially also its customers and the general public. Almost as soon as there is some material adverse impact of the addiction on the employee’s job performance, you will not just be entitled but effectively also obliged to seek information about the relevant medical background.  

You will be entitled to take a hard line against any employee who refuses to co-operate that in process. Admission that there is a problem is a necessary first step to recovery from addiction by any employee, and therefore usually a pre-requisite of the employer being ready or required by good practice to treat the matter as incapability and not misconduct.

Employer responsibility over safety & reputation

However, a link between the addiction and the employee’s day-to-day performance may not always be necessary. Even off-duty problems could form grounds to dismiss if they could prejudice your reputation or the safety of the public. 

An Employment Tribunal accepted in one case that even off-duty drug use was enough to justify the dismissal of an Air Traffic Controller - the Air Traffic service had not just to be safe, but to be seen to be safe. 

Similar considerations would apply to almost anyone in charge of machinery where his or the public safety could be an issue: "'It’s ok, he was having treatment for it', says employer after death blast", does not make happy reading for the insurers.

Addiction and disability

The Disability Discrimination Act 1995 expressly excludes as disabilities dependencies on drugs or alcohol, but it will include any mental or physical illnesses arising from them, e.g. depression or kidney failure. 

Dismissal or less favourable treatment of someone suffering in that way would become discriminatory if not justified according to the normal principles. Illness or incapacity arising from an addiction, even to illegal drugs, is no different for DDA purposes from that arising from any other cause. 

Dismissal - first thought or last resort?

Dismissing an employee on the grounds of his addiction may bring you in front of an Employment Tribunal on a variety of grounds. The unusual and potentially distressing personal background to the dismissal does not mean (however much it feels like it) that your appearance has to end in tears. 

A wise employer will make sure in advance that:

  • it has sought to obtain specialist medical advice on the employee’s prognosis and relevant treatment
  • it has been seen, at least initially, to treat the dependency as an illness rather than misconduct question
  • that it has followed its own policy, if any, on the handling of the investigation and dismissal process
  • that it is acting on the basis of a genuine belief in the adverse effect of the addiction on its own business, whether through personal performance or reputational risk, rather than in knee-jerk disapproval of the employee’s 'weakness' or perceived lifestyle.
Squire Sanders (Hammonds) LLP

Squire Sanders (Hammonds) LLP

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