A stain from a wine bottle

Briefing: Drugs and alcohol at work – an employer’s duty

In 2021, it was reported that nine out of ten people admitted to drinking alcohol while working from home, with the quantity ranging from “just a glass with lunch” to “a whole bottle” to get through the day. Drug driving arrests are also on the rise too. With many employees still working remotely or adopting a hybrid approach, should employers take a greater interest in what their staff are doing in and out of working hours and take steps to help staff avoid becoming intoxicated or using drugs during their working day? Do employers have an obligation to support those suffering with alcohol or drug dependency? This briefing by Pam Loch of Loch Associates explains the issues.

There are physical, cognitive and emotional consequences of being under the influence of drugs or alcohol – not only for the person concerned, but also for their colleagues and the business. Nearly one in four employees admit to making mistakes at work due to having a hangover. As well as the quality of the work they produce being jeopardised, there are also significant health and safety risks. Many studies have reported that hangovers increase the frequency of absences, which results in staff sleeping at work and contributing to trouble with tasks and relationships. The effect on productivity costs UK employers an average of £100bn per year.

There is also the potential for life-changing accidents occurring, resulting in physical and financial consequences for those directly involved. Directors could also be exposed to criminal prosecution under the Corporate Manslaughter and Corporate Homicide Act 2007, if they don’t take the necessary steps to prevent accidents caused by alcohol or drug misuse.

Several reports have shown that alcohol and drug consumption increased during the COVID-19 pandemic, with many citing the pressure of the ‘new way of life’ as the reason. The pandemic became a catalyst for normalising drinking at home and throughout the working day, and many are now facing challenges adapting back to their original working patterns. Employers have a legal responsibility to care for their staff’s physical and mental health wherever they work. Proactively taking steps to look after your employees’ health not only ensures they can work safely and efficiently, but also shows your team you care about them too.

Staff may not be abusing drugs or alcohol in the work environment; however, its impact at work means you need to be aware of the use of drugs and alcohol recreationally and consider the implications of that for work too. Those using substances at the weekend or in the evenings may still have them in their system when they return to work the next day, but it can have longer term impacts too.

There is a reciprocal relationship between substance misuse and mental ill health. A survey by the Priory Group in the UK reported that a third of people at risk of substance disorders also utilise mental health services and those with more serious mental health problems are more likely to smoke, use recreational drugs and misuse alcohol. Even individuals with no previous mental health issues are at risk of developing mental ill health symptoms from the chronic use of some drugs, including alcohol. The symptoms that may develop can be both short- and long-term and can lead to depression, paranoia, aggression, hallucinations and anxiety, to name a few.

However, there are many who misuse drugs or alcohol and are able to appear to function ‘normally’. During my career as an employment law solicitor, I have often encountered situations where it turned out that someone who was perceived to be a moody member of the team was, in fact, a functioning alcoholic. In one scenario, the employee’s mood changed after lunch breaks when he topped up from the vodka he stored in his car windscreen washer compartment.

In England, 586,780 people are dependent on alcohol, with only 18% of these individuals currently receiving treatment and support to tackle the issue. So, what must and can employers do to support their staff and protect their business?

There are two things to keep in mind.

What are the legal obligations?
Although alcohol and drug addictions are not disabilities under the Equality Act 2010, there are conditions associated with them that can be, for example depression and cirrhosis. If the person has a disability, then the employer has a legal obligation to consider and make reasonable adjustments. Providing counselling support to help them could be such an adjustment.

Do you want to retain the employee?
If yes, then it is certainly worth thinking about how you can help them if they don’t have a disability. If they have more than two years’ service, then an Employment Tribunal would expect you to try to help the employee overcome their addiction, perhaps by providing counselling, rather than exit them because of the addiction. Otherwise, the employer could be facing a Tribunal decision that any exit was an unfair dismissal.

There are many reasons why individuals may misuse drugs or alcohol. If there is a common trend of alcohol or substance abuse within your workplace, this may be because employees are using alcohol or drugs to self-medicate, to address high levels of work-related stress. It’s worthwhile considering workloads and encouraging your team to support one another. Having trained mental health first aiders so they can spot symptoms of stress and mental ill health, as well as a wellbeing policy and a drug and alcohol policy, are other ways you can help support staff.

It is worth considering having a routine testing policy in place. Certain sectors such as construction already have programmes in place to protect health and safety. However, extending this to other sectors makes a lot of sense with employees in organisations without drug testing programmes reported to have 40% higher drug and alcohol use. Testing not only ensures your staff are fit and safe to work and therefore reduces the risks to your business and staff, but prevents accidents or costly mistakes due to being under the influence of drugs or alcohol. It’s important if you do go down the route of putting in place random testing that you ensure you have contractual consent and a clear policy in place before you start testing. Our expert employment solicitors and HR consultants can help you ensure the testing is carried out lawfully and work with you following any positive results being received too.

This article first appeared in Platinum Business Magazine and is reproduced with kind permission.