Employment solicitor Stephen Levinson points out that following some recent developments, it is important that employers review their drugs and alcohol policy and how they handle any breaches of that policy.
A huge row has erupted over the Sackler family suspending new philanthropic donations in the UK following allegations that prescription painkillers produced by one of their businesses are helping to fuel opioid addiction in the US.
The opprobrium heaped on the Sackler Trust highlights the level of concern that drug misuse, including dependency on legally prescribed medication, is causing on both sides of the Atlantic. It emphasises that while all workplace policies need to be modified and updated to reflect changing knowledge and attitudes, nowhere is this more necessary than in the case of alcohol and drugs. Businesses are increasingly expected to support employees who have a drug or alcohol problem, rather than taking immediate disciplinary action.
The necessary starting point is to decide what amounts to a misconduct issue and what is a capability problem. This will depend on the nature ofthe business. Transport, construction and manufacturing companies will be obliged to put a greater emphasis on health and safety than those employing only desk workers. If an employee reveals a dependency, many businesses may provide support and counselling rather than going through the disciplinary regime. These policies distinguish between dependency and misconduct issues such as isolated occasions of working under the influence.
The basic requirement of a good policy is clarity over which course of action the employer will take in what circumstances. In support of this approach, the charity Business in the Community last year published a toolkit for employers dealing with drugs, alcohol and tobacco. This stressed the need to treat drug misuse as a health issue rather an immediate cause for dismissal or disciplinary action, which should, it suggested, be a last resort. In its paper Drugs and alcohol in the workplace issued this February, the TUC said a policy should make clear that employers will treat any employees who seek help in a non-judgemental, supportive way and will guarantee confidentiality. How far an employer will go in this direction will often be a resource issue. Larger companies may run an employee assistance programme but many mid-caps and small businesses will be unwilling to pay for this level of support.
Years ago, a common mistake was to have a list of matters regarded as gross misconduct that included ‘consumption of drugs and alcohol during working hours’ and omitted ‘working while under the influence of drink and drugs’. The distinction remains crucial because what matters is the effect on performance in any individual case. A number of decisions in the tribunals have been against employers who applied a blanket ban without considering exactly what, if any, risks had occurred. Again, the nature of the business will affect the rule. One transport organisation bans all desk-bound executives from drinking at any time during working hours. While they are not personally involved in delivering the service and interacting with the travelling public, they may have to respond to an accident, including dealing with the press. If they appear to have been drinking, this might damage the organisation’s reputation. There are businesses, then, where a zero-tolerance approach may be justified.
The policy should also be clear that it covers not just illicit drugs but legal ones too. Many legally used medications can impair performance, often causing drowsiness, reduced concentration and nausea, and dependency issues on prescribed drugs are well recognised. One chilling statistic from the US is that today a person is more likely to die from an accidental opioid overdose than from a vehicle accident. A specific suggestion made by Business in the Community is to define the term ‘drug’ as a substance controlled under the Misuse of Drugs Act 1971, other psychoactive substances (legal highs) restricted under the Psychoactive Substances Act 2016, prescribed medicines, over-the-counter medication and solvents.
It will always be sensible for the policy to have a specific and separate provision prohibiting possession of illegal drugs or storing them on business premises. This should be in addition to the provisions on consumption during working hours and working under the influence.
Every now and again, a case comes along that is a splendid example of what not to do. Such is Ball v First Essex Buses Ltd . It is a tribunal decision only but that is where to look for findings of fact that are a useful guide to good practice.
Ball v First Essex Buses 
Mr Ball was a long-serving bus driver who was diabetic. He was randomly tested using a saliva test that showed positive for cocaine. After both a disciplinary hearing and an appeal, he was dismissed for gross misconduct. The tribunal found the dismissal unfair and wrongful and awarded him compensation, including damages, of more than £37,600.
There were, according to the judgment, a variety of errors that the employer made. The dismissal letter had given no specific reason for terminating employment and the company’s disciplinary procedure did not specify that failing a random drugs test was gross misconduct. Reporting for duty when under the influence of illegal drugs was specified but the test sample was inadequate to establish that Mr Ball was under the influence at work. His exemplary record and behaviour while on duty indicated that he was not.
The bus company had also not examined why the test was positive. Mr Ball denied taking cocaine at any time and he was a diabetic meaning it was doubtful he would take the drug, yet the company failed to investigate alternative explanations that he put forward. The investigating officers denied Mr Ball the opportunity to challenge the result and ignored his offer of an alternative test, thereby failing to consider all aspects of his case. Both the general manager and the person who held the appeal demonstrated a closed mind and resistance to considering any other explanations or mitigation. Moreover, the person who heard the appeal had no honest belief in the employee’s guilt.
It would have been difficult to make more mistakes.
One assertion made by Mr Ball was that he may have had contact with cocaine through contaminated banknotes. According to research at the University of Surrey, cocaine is now so prevalent that one in ten people who have never used the drug have traces on their hands. According to a study by the Forensic Science Service, every banknote in Britain is contaminated with the class A drug within two weeks of entering circulation. The reason to mention this is to illustrate the need in any investigation to be thorough in considering all possible explanations.
Glassford v Royal Mail Group 
This case dealt with a delivery driver who only revealed his alcohol dependency during his appeal against dismissal, which was unsuccessful. The question was whether Royal Mail should have investigated further before making a decision in a case that, until that point, had been run on conduct lines. The Employment Appeal Tribunal held that the dismissal was fair because Mr Glassford had a poor disciplinary record, alcohol had played a part in his earlier transgressions and he had rejected an earlier offer of medical help. The facts were extreme and the prudent course in many cases would be to consider overtly – and, if necessary, investigate – whether the dependency should either excuse or mitigate the sanction imposed.
McElroy v Cambridgeshire Community Services NHS Trust 
This older tribunal decision remains a good indicator of how not to deal with an alcohol issue. Mr McElroy arrived at work smelling of alcohol. He blamed it on drinking the previous night. The NHS trust suspended him and referred him to occupational health, which stated he was fit to work. A disciplinary hearing was held, after which he was dismissed. The tribunal decided that there was no evidence of unfitness to work and that simply smelling of alcohol was not gross misconduct. Rather, what the policy said was that being unfit for duty through the effect of drinking alcohol was gross misconduct. The trust also argued that refusing to attend a second appointment with occupational health was gross misconduct because it was a refusal to obey a lawful order. However, the tribunal disagreed because the trust had given no warning that it would regard the refusal in this way.
The case illustrates the need to be very specific about what may be misconduct or gross misconduct. If an employer faces a refusal to comply with an instruction, the best course is to spell out to the employee that the refusal will have disciplinary consequences and what they may be. In the case of the transport organisation previously mentioned, working while smelling of alcohol was a misconduct offence for a specific business reason. In this case, the rule was too narrowly drawn.
In the financial sector, the issue of whether an individual is ‘fit and proper’ to carry out a regulated function is crucial in determining whether they may continue in employment. In this sector, employers’ general reluctance to provide references is countered by prescriptive regulations. Abusing alcohol or drug policies may well therefore have dramatic consequences for the careers of the highest flyers. Regulation is hardly in retreat and one can expect more movement in this area from those tasked with compliance. A clear indicator of City thinking is the attempt two years ago by Lloyds of London to ban staff from drinking during the working day.
On the other hand, in Canada last year, the Alberta Court of Appeal upheld an injunction on Suncor Energy Inc preventing it from carrying out random drug and alcohol testing at a mining site because this was an unjustifiable infringement on employees’ privacy rights. The court granted the injunction despite a drug-testing policy being in place, though not one that permitted random testing. This echoes what has happened in many European countries that have banned pre-employment or random testing except in safety-critical industries. In France, such tests are only permitted on the recommendation of an occupational physician.
There is inevitably a tension between the obligation on employers to maintain a safe workplace and concerns over invasion of privacy and offending human dignity. This will continue and changing social attitudes will gradually have their effect. What is unlikely to change in the world of employment litigation is tribunals’ insistence on examining every detail of investigations and policy wording. Whatever the employer wants to achieve, the policy has to make this very clear and set out reasons for the chosen approach. This is an area where attention to detail needs to get close to the microscopic.
This article was written for and first featured in Employment Law Journal.
This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.