By Sarah Chilton, employment lawyer speaking at iCAAD London 2019
Addiction in the workplace can present significant challenges for employers and specific instances of drug or alcohol use can present health and safety risks, and serious conduct issues.
Use of drugs or alcohol is frequently related to other health issues, both physical and mental, which is a further reason the issue needs to be dealt with sensitively by employers.
Is addiction a disability?
In the UK, employees who are disabled under the Equality Act 2010 (“the Act”), are protected from discrimination and harassment. A disability is 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 the definition of disability, unless it arose as a result of taking medically prescribed drugs or other medical treatment. This exclusion might make employers think that they can disregard disability discrimination when dealing with employees with an addiction, but it is not that straightforward.
Addiction may cause a condition which is itself a disability, or, may present because of an underlying 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.
An underlying cause
Addiction frequently appears as an underlying cause in circumstances of misconduct, absenteeism and poor performance. But it is not just addiction; one off instances of taking drugs or drinking alcohol can also be contributory factors. In particular, allegations of violence or sexual harassment in the workplace (or at work related social events) are very often triggered by drinking alcohol. In that context, having consumed alcohol is unlikely to provide any sort of defence or mitigation, but an employer should tread carefully.
If there is any suggestion that drinking was as a result of stress, anxiety or depression, or there was an adverse effect due to medication, the employer should consider obtaining a medical report to understand the medical position before proceeding with any disciplinary sanction.
Even where there is no disability present, employers should consider carefully their options before moving to dismiss. The ACAS guide to discipline and grievances at work suggests that consideration be given to measures to help those employees suffering from drug or alcohol abuse and failing to, at least, consider what help could be put in place as an alternative to a disciplinary sanction, may affect the reasonableness of any sanction.
Even in the seemingly straightforward situation of an employee presenting for work drunk or under the influence of drugs, dismissal may not be a fair response. 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.
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.
If the employer charges forward with action against the employee, and it transpires that the cause of the underperformance is their depression, then the employer may have committed an act of disability discrimination.
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 the need for a phased return to work will be particularly acute when the addiction arose due to something related to work, extreme stress for example and, in such circumstances, consideration must be given to what else might be done for the employee, within reason, to prevent the situation reoccurring.
The staff handbook
Employers should consider including relevant policies in their staff handbook. Key policies to allow an employer to deal appropriately with addiction and substance use and abuse in the workplace include appropriately worded disciplinary policies, a health and safety policy and a drug and alcohol misuse policy, including any drug testing provisions which apply.
Employers should also consider the type of support they may wish to offer, including time off, medical treatment and support packages.
Although addiction is not a protected characteristic under the Equality Act 2010, this doesn’t mean that dismissing someone with an addiction will always fall outside the Act. 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.
ABOUT THE AUTHOR
Sarah Chilton is an employment and partnership lawyer with CM Murray LLP, and will be speaking about “Addiction in the workplace: corporate risk, human frailty and legal arguments” at iCAAD London 2019.