An employer's guide to drugs and alcohol policy

To ensure compliance with health and safety rules, and legislation relating to road traffic, amongst other reasons, it is sensible for an organisation to implement a drugs and alcohol policy. Employers have an obligation to provide a safe workplace and safe system of work. Having employees on-site under the influence of alcohol or drugs may jeopardise this, as well as affecting performance and productivity generally.

An employer may choose to implement a policy on drug and alcohol use, setting out its rules not only in relation to the workplace but also prior to employees starting their working day and attending external or out of hours working events. Our example drugs and alcohol policy is a good starting point but this guide highlights further points to consider when tailoring the policy to your organisation and putting it into practice.

The approach

It is for the employer to decide its approach to dealing with alcohol and drugs issues. We would advocate that where there appears to be an underlying issue, employers adopt a supportive approach. However, that does not mean that an employer cannot discipline individuals for one-off acts of alcohol or drug abuse where there is no apparent underlying issue. Equally, adopting a supportive approach for those with genuine addictions or similar issues does not mean the employer has an open-ended obligation to keep them at work if they fail to respond to help provided.

It is also for the employer to decide whether or not to adopt a ’zero-tolerance’ approach to alcohol consumption at workplace events or activities, and how broadly this will apply.  For example, alcohol consumption might potentially be ruled out only for those in employees in safety-critical roles, rather than throughout the organisation. Of course, there may be employee relations issues that arise from any such decisions which must be carefully managed through your communication and consultation processes.

It is important to note that addiction to drugs, or an employee’s attendance at work under the apparent influence of drugs, could be the result of administration of prescribed medication or other medical treatment. If treatment relates to a long-term health condition or disability, there is a potential risk of disability discrimination. Similarly, dependence on alcohol or drugs could also be a symptom of depression, which is a potential disability. In these circumstances you should consider whether reasonable adjustments are required and take full medical advice before any disciplinary sanctions are considered. Seek advice from your HR Rely advisor if you are unsure on this.

Searches and screenings

Where it is suspected that an employee has brought alcohol or drugs on-site, an employer may wish to carry out a search of the employee’s personal property, if they have an express right in the contract to carry out such a search. Even without a contractual right, an employer is entitled to search company   property e.g., desks, cupboards. Searching an employee’s personal property (such as handbags or clothing) may give rise to industrial relations issues and may potentially be a breach of the implied term of trust and confidence. Searches should be restricted to company property wherever possible.

Our policy talks about drug and alcohol testing but, again, an employer is only able to require an employee to undergo such a test if it has the contractual right to do so. If you don’t have such a clause in the contract you may wish to speak with your HR Rely advisor. It may not be appropriate for all employers to include a drug-screening procedure in a policy. However, it may be relevant where staff drive, operate machinery, or work in any other circumstances where working under the influence of alcohol or drugs could pose a serious risk. The Information Commissioner’s office states that drug and alcohol testing is unlikely to be justified unless it is for health and safety reasons. Employers may wish to restrict testing to certain categories of employee, or specified job roles, where risk is highest.

Given the intrusive nature of testing, it is advisable to complete an impact assessment to document the treasons why testing is considered necessary and proportionate.

When including a clause, it is sensible to state that an employee who refuses/avoids such a test will be dealt with under the disciplinary procedure and that inferences may be drawn from any unreasonable refusal to co-operate. However, it is important to take any religious, ethical, or medical objections to testing into account (although these should rarely arise).

Handling information about drugs, alcohol, and health

For data protection purposes, drug and alcohol-related information relating to individual employees is likely to be ‘special category’ personal data (formerly known as ‘sensitive’ personal data) and will attract a higher level of protection.

Before the General Data Protection Regulation (GDPR) was implemented, employers may have relied on employees’ consent as the basis for processing their personal data when carrying out drug and alcohol testing. However, under GDPR, it is no longer appropriate to rely solely on consent. Due to the imbalance of power in the employment relationship, consent would not really be ‘freely given’, as required by GDPR, and could not easily be withdrawn.

For that reason, it is important that employers are clear about the additional ‘lawful basis’ they are relying on to collect and process the data, under Article 6 GDPR. In this context, the justifiable legal basis is likely to be that processing data on alcohol and drugs is in the ‘legitimate interests’ of the employer, in order to provide a safe place of work and safeguard other employees.

Many employers will have a separate Data Management Policy and/or Privacy notice which explains in detail how employee data is collected, processed, and stored. These are referenced in the Drugs and Alcohol policy. If your organisation does not have these policies in place or needs support with any aspect of data protection law, please speak to your HR Rely advisor.

Consultation, communication, and training

The success of the policy will depend on communication and consultation with the workforce and the training of supervisors and managers. Training might cover:

• how to identify signs of alcohol or drug abuse
• understanding the policy
• the role of management in terms of supporting employees with substance abuse issues and how to deal with an employee who approaches management with a problem
• how to deal with incidents of one-off drug or alcohol related behaviour.

The policy should also be comprehensively reviewed 12 months after implementation to assess whether it is successful and make any necessary adjustments. Following this, it should be reviewed on a regular basis.

Guidance note for managers on applying the drugs and alcohol policy

Introduction

This guidance note should be read in conjunction with our Alcohol and Drugs policy. 

All *[managers / supervisors / team leaders] have a responsibility to ensure the effectiveness and wellbeing of their team. In light of this we have developed a policy that has been designed to assist and support individuals when it is identified, either by themselves or through their actions, that a problem exists in relation to alcohol or drug misuse.

The aim of this guidance note is to take *[managers / supervisors / team leaders] through the process of dealing with the issue of where *[a member of the organisation / an employee] is affected by the consumption of drugs or alcohol.

Identifying the signs

Potential indicators of drug or alcohol misuse are the smell of alcohol on a worker’s breath, slurred speech, or unsteadiness/lack of coordination. A worker affected by drugs or alcohol dependency may also show signs of fatigue or general lethargy or experience mood swings. The worker may be persistently late or absent. However, aside from the smell of alcohol, it is important to note that similar signs and symptoms might be caused by various medical conditions or medical treatment. Do not immediately assume, without further investigation, that a worker is under the influence of drugs or alcohol.

Health and Safety considerations

Where an employee attends work under the apparent influence of drugs or alcohol, it is important to act quickly top ensure the health and safety of the worker and their colleagues.

The employee should be removed from the work area as soon as any issues are noted. Once it has been established *[by one of our recognised assessors] that the individual is unfit for work they should be sent home. You have a duty of care to make sure they get home safely; for example, it maybe appropriate to call a taxi. You must ensure that the worker does not intend to drive home. The same principles apply to a worker who appears to be under the influence of alcohol or drugs at any work-related event. 

An investigation should be carried out at the earliest opportunity, ideally the next working day, to establish next steps and whether disciplinary action might be appropriate.

Next steps

In the event that you believe one of your team is experiencing difficulties with alcohol or drugs, you should make further enquiries sensitively and discreetly. This should include a face-to-face discussion with the worker. If the worker accepts that they are experiencing alcohol or drug related issues, they should be reassured that the organisation is willing to assist. There are a number of options available:

• An assessment could be carried out by the company’s occupational health provider (this is likely to be the most sensible route in the first instance to establish the nature of any problem).
• A report could be obtained from the employee’s GP.
• There could be a referral to an appropriate self-help group.
• The employee could be allowed time away from the workplace.
• The *[manager / supervisor / team leader] could hold regular meetings with the employee to check on their wellbeing and progress.
• A referral could be made to the HR Department.

However, if the worker does not accept that their unacceptable conduct is caused by either drug or alcohol misuse, you should advise them that, should any further breaches of the company’s policy occur, the matter will be considered as a disciplinary offence and will be dealt with under the disciplinary procedure. The individual should also be advised that any disciplinary action taken (if there are insufficient mitigating factors) could lead to dismissal. Equally, should an employee embark on a rehabilitation process, and this proves unsuccessful as a consequence of a failure to comply with advice given, or a failure to attend for treatment, resulting in a relapse, then the same disciplinary provisions could potentially be applied.