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Drinking and substance abuse – is your business on top of this risk?

As we move out of lockdown and return to a sense of normality, many employers are now looking to introduce hybrid working in response to both employee demand and their experience around what jobs are able to be carried out as successfully at home as they can be in the office. 

Some employers are also  faced with a dilemma around balancing their need or desire for their people to return to the workplace and the impacts that  –  an insistence on full-time office hours could have on employees who could become disenchanted through a reluctance to embrace a more flexible working strategy and end up looking further afield for a greater sense of autonomy and better work-life balance.

But whatever your business strategy ends up being, aside from impacts on productivity, culture and the wide range of internal and customer facing issues to be considered, there are some very important employee wellbeing aspect that are important to really think through.

‘90% of people who were working from home in the last year admitted to drinking while working’. This shocking statistic published by Personnel Today following Protecting’s survey of 1,300 homeworkers will undoubtedly make for some grim reading for employers who, given the events of the last year or so, have been forced into allowing a more agile form of working with the Government’s guidance for many months having been to ‘work from home where possible.’

Whilst it is certainly not always possible to identify someone who has been drinking because the signs are not necessarily obvious, spotting someone who is under the influence of drugs or alcohol in the workplace is likely to be easier than when they are working remotely.   Obvious indicators may include erratic behavior, careless mistakes or, particularly in the case of alcohol or cannabis use, smell of the substance in question.  While not all people who behave in an erratic way or make careless mistakes are under the influence (we, of course, need to be mindful of other reasons that these things may occur) this can be a fairly good indicator.

While we cannot necessarily sense when someone is acting erratically over Microsoft Teams or over the phone there are a few tell-tale signs which we can look out for such as persistent lateness to scheduled meetings (particularly first thing if these are penciled in for first thing in the morning);

  • Careless mistakes (especially if the employee was not prone to errors before);
  • Unexplained reductions in the volume of work an employee is producing;
  • Absenteeism (including any peculiar absence patterns); and
  • Changes in usual behaviour.

So the question  becomes how do we balance giving our people flexibility and autonomy where it seems at least from the recent research, that many are at risk of abusing the fact that they have been working from home without being under the watchful eye of management?  It cannot be understated how difficult this balance can be because equally, employers have to be able to demonstrate a level of trust in their employees (bearing in mind that a breach of mutual trust and confidence can lead to constructive dismissal claims for those with over two years’ service).

As a first practical step, it is important to have in place a clear policy when it comes to home working that should  make clear the potential consequences of consuming alcohol during working hours.  In certain circumstances it might also be important to consider  considering introducing a policy around testing for alcohol/ drug use at home although this is a particularly tricky area. 

While testing can be built into an alcohol and drugs policy, often, an employee’s consent is required to undertake such a test.  While employers can, to some extent, rely on the concept that if an employee refuses a test then this in itself constitutes a form of misconduct, this will not always give rise to a safe dismissal. 

In Chivas Brothers Limited v Christiansen, a Tribunal found that an employee who was dismissed after refusing to take a drugs test had been discriminated against on the grounds of his mental impairment.  Similarly, in Ball v First Essex Buses Limited, the employer had a random drugs testing policy and Mr Ball’s test returned a positive result for cocaine.  Mr Ball protested his innocence stating that there were a number of ways the cocaine could have presented itself (he often handled cash, which could have been contaminated and often licked his fingers after checking his blood sugar, as he was diabetic).  Mr Ball took two drug tests on his own which were negative and provided these results to the employer – despite these, the employer relied on their own test and dismissed him.  The Tribunal held that Mr Ball had been unfairly dismissed.

The second case in particular brings us on to an important and difficult point.  Where drug tests are being carried out by employees at home (particularly if these are targeted at people  suspected of abusing substances) there may be a level of scepticism (for example, have they asked someone to take the test for them).  Even where this is suspected, making such an accusation may give rise to a claim that the relationship of trust and confidence between employer and employee has been broken and give the employee cause to raise a constructive dismissal claim.

Unfortunately, given the intrusive nature of drug and alcohol testing it is generally only advisable to conduct such testing when it is absolutely necessary, for example, if there are health and safety obligations tied to the role an employee is performing.

Looking at all of the above, one thing that is clear is that this can be a very difficult area to manage.  Where an employee’s performance or behaviour is affected by alcohol or drugs an employer will need to ensure that it has robust policies in place for dealing with these types of situations.  Where the employee is not based in the office, this is where it becomes much more difficult.  Of course, performance and behavioral issues themselves can be dealt with under a clear  disciplinary/ performance management procedure – however, these are very limited circumstances where conducting drug/ alcohol tests will be appropriate.  In light of these difficulties, many employers take a supportive approach – particularly in cases where there may be drug or alcohol addiction. 

Taking all of the above into account there are a few key points to take away. 

  1. Employers should ensure that they have a clear and robust alcohol and drugs policy in place;
  2. where testing is appropriate employers should ensure that they act with a degree of caution in terms of refusals (and in some cases, even positive results);
  3.  when it comes to home-working employers need to be able to spot the signs of substance misuse and where they occur, know the best way to approach this. For example, building in testing to days when hybrid workers will be in the office can be  far more effective that home testing.

Ultimately, the last year or so has been a difficult one for most of us and given the pandemic’s toll on the mental health of the nation, escapism through substance misuse may be what we are seeing, as opposed to employees abusing their ability to work from home.  Therefore, while we can deal with conduct and performance issues, if there is suspected substance abuse approaching the challenge from a place of support will likely yield greater results in most cases.

For a free consultation around any of the issues raised by this article, or for support any aspect of employment law don’t hesitate to reach out to our team at legal@lexleyton.co.uk

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