Substance abuse - dismiss or support?

16-02-10

Substance abuse in Ireland is widespread with the statistics of use and abuse ever increasing in our society. ‘ Ireland continues to be amongst the highest consumers of alcohol in the world. In the new enlarged European Union, Ireland ranks second after Luxembourg for alcohol consumption in 2001.’ (WHO, Health for All Database, 2001).

Binge drinking and drinking to intoxication is particularly linked to an increased risk of short-term (acute) harm such as accidents, injuries, violence and poisoning. Drinking above the guidelines of more than 14 standard drinks per week for women and 21 for men is linked to increased risk of long-term (chronic) harm, such as high blood pressure, cancers, cirrhosis and alcohol abuse. A recent study showed that adults in Ireland had the highest reported consumption per drinker and the highest level of binge drinking in comparison to adults in other European countries. The study showed that binge drinking is the norm among Irish men; out of every 100 drinking occasions, 58 end up in binge drinking. Among women, 30 occasions out of 100 end up in binge drinking (Ramstedt & Hope).

It is important that as employers we recognise that it is highly probable that the patterns noted in our society are likely to be reflected within our workplaces. The next question is how are we, as employers, going to respond to that fact?

Should you have a no tolerance policy and dismiss anyone that is found to be in breach? Should you approach any affected staff members with support and encouragement? There are of course arguments for both sides. Consideration must also be given to the nature of the business – is it a safety critical industry that may warrant a tougher stance? How can employers be sure that an employee is under the influence of drugs or alcohol? If testing is to be completed on site – what are the tolerated levels and how will these tests be conducted? Do they comply with widely accepted standards? What support options are available to companies who want to assist recovery?

At what point should employers get involved – should what employees do in their lives outside work concern employers? If an employer suspects an employee is struggling – should they intervene and how should they handle it?

The Equality Act 1998 & 2004 declares that unfavourable treatment on the grounds of disability is discriminatory. Substance abuse is qualified as a disability. Therefore, under this act employers are obliged to provide reasonable accommodation for an employee or potential employee with a disability such that it does not exceed a nominal cost. This must be considered when deciding how an employee with a substance abuse issue is going to be managed.

S16 of the 1998 Equality Act provides that an employer shall do ‘all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities and that a refusal or failure to provide special treatment or facilities shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost to the employer’.

This point was reinforced in March 2006 when the Labour Court upheld the principle that alcoholism is a disability under the Employment Equality Acts 1998-2004.  The decision in A Government Department v An Employee, Determination No. EDA062 crystallises the principle that alcoholics cannot be treated less favourably at work. The Court held that alcoholism is a disability within the meaning of the Employment Equality Act.

The Safety Health & Welfare at Work Act, 2005

Section 13 states that an employee shall, while at work, ‘ensure that he or she is not under the influence of an intoxicant (defined as drugs and alcohol) to the extent that he or she is in such a state as to endanger his or her own safety, health or welfare at work or that of any other person’. Furthermore, the Act requires the employee ‘if reasonably required by his or her employer, to submit to any appropriate, reasonable and proportionate tests under the supervision of a registered medical practitioner who is a competent person as may be prescribed’.

Employment Appeals Tribunal Case

In an Employment Appeals Tribunal case, an employee who reported for the morning shift as a Luas tram driver was selected and screened for drugs and alcohol. He screened positive for alcohol with a BAT (Breath Alcohol Test) of 3 times the limit set by the company in their policy, however he did not provide a urine sample and left the depot. The claimant was suspended without pay pending further investigation and later dismissed.

The Tribunal found that it was satisfied that the sample provided by the claimant was clear evidence that the claimant was in excess of the limit for driving a tram. The Tribunal was satisfied the claimant set out to avoid giving confirmatory urine and was thus in breach of the procedure. The Tribunal held that it was reasonable for the company to conclude that the claimant was guilty of gross misconduct under the terms of the employment contract and to dismiss him, and further found that the dismissal of the claimant was fair.

Importance of Policy Communication

This case highlighted the importance of communicating the policy effectively, ensuring that random testing is truly random and incorporating the policy terms into contracts of employment.

Every organisation is different and will need a tailored policy to reflect its own needs and a suitable approach to be adopted.  The 2007 CIPD Managing Drug and Alcohol Misuse at Work survey shows that a significant proportion of employers have no policies on either alcohol or drug misuse at work. Even where employers do have policies in place, many don’t communicate them effectively to managers and staff.

In a general sense employers should;

• Conduct a risk assessment and develop a safety statement
• Update contracts of employment to reflect the company policy on substance abuse
• Invite consultation from staff on a drug and alcohol policy
• Examine the current culture within the organisation – does the culture of the organisation condone or encourage the use of alcohol and drugs? This means asking questions such as: Is alcohol served in the premises? Is drinking at lunchtime encouraged during working hours via peer group pressure? Does achieving promotion require joining the after-working-hours pub group attended by managers? What measures are already in place that would support the policy implementation?
• Specify what exactly the policy covers – drug, alcohol, prescription medication
• Agree the parameters of what is a conduct issue in this area
• Agree how to approach a capability issue in this area
• Explore the option of random testing versus testing where a concern has been raised and ensuring that thresholds for acceptable and unacceptable levels are reasonable to the role and aligned with generally accepted European standards.
• Provide employees with education & training on substance abuse
• Train managers and supervisors in the identification of poor work performance
• Update/establish Employee Assistance Programmes (EAPs) to include Alcohol and Drug Programmes
• Launch a policy effectively with ongoing communications at regular intervals
• Review the policy and procedures regularly

When dealing with alcohol or drug misuse at work, employers have to strike a balance between using the disciplinary procedure for conduct-related incidents and providing support where individuals have acknowledged they have a problem.

Workplaces present opportunities for early detection, intervention and support. The environment can promote the health of workers and influence the health of their families and community. The stability that ensues from holding down a job is often an important factor in facilitating recovery from alcohol and drug-related problems. Similarly, support and treatment may help to enable employees with a problem to return to work after receiving help. As a result employers, the business community, employees and their families, as well as society as a whole, can benefit.

Dealing with infringements

It is imperative that a fair procedure should be followed, whether it’s a disciplinary matter or a capability issue. An adequate system of monitoring work performance is therefore crucial. Without it, early recognition of the dependency problem is much less likely. Employers should get involved if they have a concern that an employees level of use of any such substance is having an impact on an individuals’ attendance or performance or if it could increase the risks of accidents at work or have an impact on the health and safety of the general public.

Best practice would advise that policies should encourage employees to seek support and if there is an incident the employee should be reminded of the Company’s support. If they refuse this the matter can be dealt with via the disciplinary route. If the employee admits there is an issue and accepts the support the disciplinary process should be put on hold while the employee receives the necessary treatment and management via the capability route.

Your policy should include 5 main elements:

1. Policy statement: Clearly explain why the organisation is concerned about alcohol and drug use and why it’s seen as a problem in the workplace and that everyone is responsible for making the policy work.
2. Ensure all staff clearly understand the scope of the policy and what the employing organisation will and will not allow in relation to employees’ drug and alcohol use, as it affects their employment.
3. Employee responsibilities should be clearly laid out and information provided on how training will be undertaken for Managers/ Supervisors.
4. Set out clearly the rules and procedures for managing issues relating to drugs, alcohol and other substances to include both the supportive and disciplinary elements.  Supportive procedures should aim to encourage employees to seek help and gain access to support and treatment.  Disciplinary plus performance and capability procedures should explain when and how such procedures would be invoked. For example:

• the consequences of reporting to work unfit due to alcohol or drugs
• impaired performance as a result of use of alcohol or drugs outside the workplace
• explaining that if help is refused and/or impaired performance continues that capability/disciplinary action may result
• the consequences of possessing and/or dealing in drugs at work
• when dismissal action may be taken, for example in cases of gross misconduct

5. Explain who is responsible for administering and maintaining the policy.

To implement a Drug and Alcohol Policy call HRP on 01 676 0006

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