Managing Addictions at Work The Law, Evidence and Procedure

1
Managing Addictions at WorkThe Law, Evidence
and Procedure

• Justin McPhee and Stan Thompson
• 2007

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• Context
• Drug and other substance misuse is a growing
  problem.
• It involves the use of illegal drugs,
  prescribed drugs and
• everyday substances like glue, lighter fuel
  and solvents.
• Many drug misusers are in employment and
  this
• can create problems in the workplace.. such
  as
• absenteeism, increased accident rates and
  deteriorating
• workplace relationships.
• Employers are having to deal with drug related
  problems
• and those who have developed policies are best
• prepared.

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• Definitions
• Drug dependence is defined as
• The habitual taking of drugs by employees other
  than drugs prescribed as medication, whereby
  their ability to perform their duties is
  impaired, or their attendance at work is
  interfered with, or they endanger the safety of
  others.
• Alcohol dependence is defined as
• The habitual drinking of intoxicating liquor by
  employees, whereby their ability to perform their
  duties is impaired or their attendance at work is
  interfered with, or they endanger the safety of
  others.

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• Drug Substance Misuse in the Workplace
• Key issues
• - Drug and substance misuse at work is increasing
• - Many of the problems associated with drug
  misuse are similar to alcohol - and may be dealt
  with in a similar way
• It is an offence for employers to knowingly allow
  the supply or production of a controlled drug on
  premises which he/she occupies or manages
• When dealing with problems which may be related
  to the misuse of drugs or other substances it is
  best to concentrate on performance aspects
• It is important to follow a fair procedure for
  disciplinary problems
• Dismissal for off duty misuse of drugs or other
  substances may not be fair unless employment was
  adversely affected
• A policy on drugs can help an organisation to
  deal with any drugs related problems in a
  considered way

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• Alcohol Drugs Comparing Approaches
• Key issues
• Can Alcohol be dealt with in the same way as
  Drugs?
• Some organisations now treat drug dependence as
  an illness and frame policies aimed at
  rehabilitation.
• This approach encourages staff with a drugs
  problem to seek treatment and help prevent
  workers covering up for colleagues because they
  fear they may be dismissed.
• Drugs differ from alcohol in that their use is
  not generally socially acceptable and is often
  illegal.
• Use of some drugs can rapidly affect physical and
  mental health more so than alcohol abuse - the
  earlier the problem can be dealt with the greater
  chance of rehabilitation.

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• Drugs the Law
• Misuse of Drugs Act 1971
• Section 8 of the Act allows for the prosecution
  of occupiers of premises who permit the supply
  of controlled drugs on their premises.
• Employers NOT taking action to prevent supply
  constitutes permitting.
• Health and Safety at Work etc Act 1974
• Section 2 of the Act places a duty on employers
  to provide a safe place of work and competent
  employees.
• Section 3 states that employers are to look after
  the health and safety of others, e.g. the public.
  
• Section 7 states that employees have a duty to
  take reasonable care for the health and safety of
  themselves and of other persons who may be
  affected by their actions and behaviour at work
  and co-operate with health and safety activities.
  
• The Management of Health and Safety at Work
  Regulations 1999
• Under regulation 3 employers have a duty to
  conduct a risk assessment of the risks to the
  health and safety of employees and others
  affected by the organisation.
• Provision and Use of Work Equipment Regulations
  1998
• Employers must assess any additional risk as a
  result of using work equipment in the conditions
  that exist in their business - plus special needs
  of young workers in line with the Management of
  Health and Safety at Work Regulations.

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• Drugs the Law 2
• Data Protection Act 1998
• The Data Protection Act 1998 sets out rules to
  ensure that personal information on employees
  held by employers is managed properly. This
  includes any information on employees from drug
  and alcohol testing.
• Human Rights Act 1998
• Article 8 of the Human Rights Act 1998 sets out
  the right to respect for private and family life.
  It also covers how organisations hold and use
  information about employees.
• Road Traffic Act 1988
• This sets out the offence of driving or
  attempting to drive a motor vehicle while unfit
  through drink or drugs. The legal limit for
  alcohol is 80 milligrams of alcohol per 100
  millilitres of blood. Companies should ensure
  this is reflected within their car policy.
• Transport and Work Act 1992
• This Act makes it a criminal offence for
  specified jobs to be undertaken by those unfit
  through drink or drugs. Employers may be liable
  unless they can show all due diligence.

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• The Employment Act 2002 (Dispute Resolution)
• Regulations 2004
• When taking disciplinary action employers must
• follow a minimum three-step disciplinary and
• dismissal procedure
• the employee must be given written information in
  advance about the circumstances that may lead to
  disciplinary action or dismissal
• they must be invited to a meeting to discuss the
  issue and be allowed a companion at the meeting,
  and
• they must be allowed to appeal against the
  outcome of the meeting.

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• Focus on - Drugs Act 2005 Key Aims
• Increase the effectiveness of the Drug
  Interventions Programme by getting more offenders
  into treatment.
• Introduce a new civil order that will run
  alongside ASBOs for adults to tackle drug related
  anti-social behaviour.
• Enhance Police and Court powers against drug
  offenders.
• Clarify existing legislation in respect of magic
  mushrooms.

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• Drugs Act 2005 - Content - 2
• Test drug offenders on arrest, rather than on
  charge.
• Require a person with a positive test to undergo
  an assessment by a drugs worker.
• Provide for an intervention order to be attached
  to ASBOs issued to adults whose anti-social
  behaviour is drug related, requiring them to
  attend drug counselling.
• Allow a court to remand in police custody for up
  to a further 192 hours those who swallow drugs in
  secure packages, to increase the likelihood of
  the evidence being recovered.
• Allow a court or jury to draw adverse inference
  where a person refuses without good cause to
  consent to an intimate body search, x-ray or
  ultrasound scan.
• Create a new presumption of intent to supply
  where a defendant is found to be in possession of
  a certain quantity of controlled drugs.
• Require courts to take account of aggravating
  factors - such as dealing near a school - when
  sentencing.
• Amend the Anti-Social Behaviour Act 2003 to give
  police the power to enter premises, such as a
  crack house, to issue a closure notice.
• Amend the Misuse of Drugs Act 1971, making fungi
  containing the drugs Psilocin or Psilocybin
  (magic mushroom) a class A drug.

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• Drugs Act 2005 3
• The new Act brings about new police powers to
  test for
• Class A drugs and more.
• Offences under the Act include
• Possession of a controlled substance unlawfully
• Possession of a controlled substance with intent
  to supply it
• Supplying or offering to supply a controlled drug
  (even where no charge is made for the drug)
• Allowing premises you occupy or manage to be used
  unlawfully for the purpose of producing or
  supplying controlled drugs
• Drug trafficking (supply) attracts serious
  punishment including life imprisonment for Class
  A offences.
• Police have special powers to stop, detain and
  search people on reasonable suspicion that they
  are in possession of a controlled drug.

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• Classification under the Drugs Act 2005 - 4
• Class A drugs
• Include Ecstasy, LSD, heroin, cocaine, crack,
  magic mushrooms (if prepared for use)
  amphetamines (if prepared for injection)
• Penalties for possession Up to seven years in
  prison or an unlimited fine. Or both
• Penalties for dealing Up to life in prison or an
  unlimited fine. Or both
• Class B drugs
• Include Amphetamines, Methylphenidate (Ritalin),
  Pholcodine
• Penalties for possession Up to five years in
  prison or an unlimited fine. Or both
• Penalties for dealing Up to 14 years in prison
  or an unlimited fine. Or both
• Class C drugs
• Include Cannabis, tranquilisers, some
  painkillers, GHB (Gamma hydroxybutyrate),
  ketamine
• Penalties for possession Up to two years in
  prison or an unlimited fine. Or both
• Penalties for dealing Up to 14 years in prison
  or an unlimited fine or both

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• Other Drug Laws
• Drug legislation since 1968
• Medicines Act 1968
• This law governs the manufacture and supply of
  medicine. There are three categories
• Prescription Only drugs can be sold by a
  pharmacist if prescribed by a doctor
• Pharmacy medicines may be sold by a pharmacist
  without prescription
• General sales list medicines may be sold without
  a prescription in any shop
• Possession of Prescription Only medicines without
  a prescription is a serious offence. Drugs such
  as amyl nitrite, GHB and ketamine are regulated
  under the Medicines Act.
• Road Traffic Act 1972 see 1988 update above
• Makes it an offence to drive while under the
  influence of drugs and drink.
• Drugs include illegal and prescribed substances.
• Causing death by dangerous driving could lead to
  a long prison sentence and an unlimited fine.
• Customs and Excise Management Act 1979
• In conjunction with the Misuse of Drugs Act
• Makes it illegal to import or export controlled
  drugs without authorisation.
• A successful conviction leads to the same
  penalties as under the Misuse of Drugs Act,
  although the fines can be more substantial, based
  on the value of the drugs seized.

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• Drug legislation since 1968 - 2
• Cigarette Lighter Refill (Safety) Regulations
  1999
• Is an amendment to the Consumer Protection Act
  1987.
• It makes it illegal to supply gas cigarette
  lighter refills to anyone under the age of 18.
• Retailers could face a hefty fine or a prison
  sentence.
• Intoxicating Substances (Supply) Act 1985
• Makes it an offence for a retailer to sell
  solvents to anyone under the age of 18, knowing
  that they are being purchased to be abused.
• It doesn't make it illegal to own or buy
  solvents.
• Children and Young Persons (Protection from
  Tobacco) Act 1991
• Along with the Children and Young Persons Act
  1933, makes it illegal to sell tobacco products,
  which includes cigarettes, to people under the
  age of 16.
• It also makes it mandatory to display warning
  signs.
• Drug Traffickers Offences Act 1994
• Gives police the power to seize the assets and
  income of anyone who is found guilty of drugs
  trafficking, even if that income isn't related to
  the trafficking of drugs.
• Illegal to manufacture of sell equipment for the
  preparation or use of controlled drugs.

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• Disability discrimination BUT.
• Employees may have claims under the Disability
  Discrimination Act (DDA) for reasons related to a
  dependency on alcohol or drugs.
• While alcoholism and drug addiction in themselves
  are not covered by the DDA, they may result in or
  be indications of other conditions that are
  covered.
• For example, alcohol misuse (not a disability)
  may result in, or be a symptom of, depression
  (potentially a disability).
• Employers should take medical advice on any
  consequential or related illness and consider
  whether there is a DDA risk.
• If so, employers should take the normal steps of
  considering all reasonable adjustments and taking
  full medical advice before considering a
  dismissal.

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HOW TO RECOGNISE A PROBLEM?

• Patterns of depression/fatigue
• Absenteeism short term frequent
• Poor time keeping
• Erratic performance
• Lack of discipline
• Unusual irritability
• Over confidence
• Sudden mood swings
• Inappropriate behaviour
• Reduced response times
• Becoming easily confused
• Reduced productivity
• Deterioration in relationships with colleagues,
  customers or management
• Financial irregularities
• Dishonesty and theft

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HOW IT AFFECTS YOUR BUSINESS?

• Productivity underperformance, sickness
  absence, errors
• Health and Safety - Accidents at work to self,
  others your responsibilities as an employer/
  risk assessment/first aid
• Fire hazards
• Loss of income promotion impaired
• Absenteeism and reduced Productivity
• Poor performance and time keeping
• Staff retention/ recruitment/ training
• Legal Costs
• Poor reputation
• Unemployment

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• More to Signs Symptoms
• Behind an alcohol or drug problem there may be a
  personal or work issue that needs to be
  acknowledged so that assistance can be sought
  where possible.
• Personal issues that may require support include
  
• alcoholic family member this can cause severe
  problems at home or feelings of isolation,
  helplessness, loss of self-esteem and depression,
  and a persons work may well suffer
• bereavement
• family breakdown or divorce
• the stresses of being the carer of a disabled
  child or elderly relative.
• Work issues that should be addressed if theyre
• described as part of the problem include
• work-related stress
• bullying and harassment.

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• Drugs SMS Evidence and Legal issues at Work
• Issues for managers and HR include misconduct,
  performance, health and safety, and dishonesty.
• Employers need to adopt a flexible approach to
  dealing with incidents involving drug and alcohol
  misuse.
• Normal legal mantra suggests consistency when
  dealing with employees - and similar offences
  should normally result in similar sanctions.
• Employers should review specifics and consider
  what action is most appropriate.

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• Drugs SMS Evidence and Legal issues at Work
  -2
• Traditionally, the misuse of drugs or alcohol has
  been seen as a misconduct issue.
• Employers now consider misuse of drugs or alcohol
  as a capability issue.
• Employers should carry out a thorough
  investigation into any allegations about drug or
  alcohol misuse.
• Key issue will be whether the incident suggests
  that the employee suffers from an addiction, or
  whether the misuse is occasional.
• If its occasional, its more likely that it
  should be treated as misconduct.

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• Drugs SMS -Evidence and Legal issues at Work -
  3
• Misconduct can manifest itself in different ways
• breach of a specific contractual term or policy
  provision (for example a provision requiring
  staff not to attend work while under the
  influence of alcohol or drugs)
• unauthorised absence
• erratic behaviour, fighting or insubordination
• inability to perform duties
• bringing the employer into disrepute.

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• Drugs SMS Evidence and Legal issues at Work -
  4
• Employers can, of course, take action in relation
  to the consequential behaviour following drug or
  alcohol misuse.
• Example - two drunk colleagues fighting at a work
  party, or an employee under the influence of
  drugs being abusive to a client.
• A full investigation should be carried out,
  including any underlying issues associated with
  the substance abuse (for example addiction,
  stress, depression).
• If theres a substance abuse problem, this can be
  dealt with separately.while also acknowledging
  and applying a sanction in relation to the
  consequential behaviour.
• So an employee might be placed on a
  rehabilitation programme, while simultaneously
  receiving a final written warning for fighting.

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• Drugs SMS Evidence and Legal issues at Work -
  5
• Health and Safety
• Employers have legal duties to both employees and
  third parties. If an employee puts colleagues in
  danger by their behaviour, the employer has a
  responsibility to remove that danger.
• May mean increasing the level of supervision or,
  in extreme cases, proceeding to a suspension or
  dismissal (preceded, of course, by any
  appropriate warnings).
• An employer will have an equivalent duty to
  ensure the safety of the employee themselves, so
  may need to take steps to remove them from the
  working environment, either temporarily or
  permanently, if their behaviour persistently
  results in them being a danger to themselves.
• Employees have an individual legal responsibility
  in relation to their own health and safety and
  that of their colleagues.
• In theory, they could be sued for negligence if
  they fail to carry out their work with reasonable
  care due to the influence of drink or drugs and
  cause damage or injury as a result.

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• Drugs SMS Evidence and Legal issues at Work -
  6
• Lunchtime drinking
• Employers are entitled to enforce a zero
  tolerance approach to alcohol in the workplace,
  which would include a ban on lunchtime drinking.
• However, employers should think carefully about
  their approach - do they only want to impose a
  ban on those in safety critical roles?
• Do they want to impose a limit?
• Do they want to make sure that staff are capable
  of work in the afternoon, in which case a
  statement that staff should not work under the
  influence of drink/drugs is probably sufficient
  -i.e. staff can have a drink at lunchtime, but if
  it affects their performance it will be a
  disciplinary issue.
• If zero tolerance is the approach, this should
  be widely publicised and strictly enforced.

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• Drugs SMS Evidence and Legal issues at Work -
  7
• Off-duty misbehaviour
• Employers will not have a right to discipline or
  dismiss an employee for their off-duty behaviour.
  BUT if an employees actions have an effect on
  the business, an employer may be entitled to step
  in.
• May be that levels of performance significantly
  drop as a result of recreational drug use, or
  because they have been charged with a
  drug-related offence.
• May be a reputation issue, but the employer
  will need to show that the employees behaviour
  does genuinely reflect badly on the employer.
• An exception to this general rule is where an
  employee is convicted of a drink-driving offence
  and has their driving licence removed as a
  result. If the employees job requires them to be
  able to drive (and theres no alternative role or
  other reasonable means of them carrying out their
  role), an employer would be entitled to dismiss.
• Could be a fair reason on the grounds of
  illegality that is, the employee can no
  longer carry out their role without infringing
  the driving ban.

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• Drugs SMS Evidence and Legal issues at Work -
  8
• Should you get the Police involved?
• Where theres an allegation of criminal conduct
  (for example violence, supply of illegal drugs,
  drink driving).
• A question that inevitably has to be dealt with
  on a case-by-case basis - a consistent approach
  is preferable.
• Factors to take into account might include
• seriousness of the offence
• whether the offence was committed outside of
  normal working hours
• whether any third party has been hurt as a
  result.

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• Drugs SMS Evidence and Legal issues at Work -
  9
• Its an offence under the Misuse of Drugs Act
  1971 for an employer knowingly to allow premises
  to be used for the production or supply of
  controlled drugs.
• If an employer notifies the police that an
  employee has committed a criminal offence and the
  police subsequently find that theres no case to
  answer, an employee could claim that there has
  been a breach of trust and confidence.
• This could lead to a constructive unfair
  dismissal claim.
• If the employer can show that it acted reasonably
  and that there were reasonable grounds for its
  belief that a criminal act had occurred, it
  should be able to successfully defend such a
  claim.
• Employers should investigate any alleged activity
  before filing a complaint.

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• Drugs SMS Evidence and Legal issues at Work -
  10
• Confidentiality
• Any information about an employees health is
  kept in strictest confidence.
• Data Protection Act 1998 requires employees to
  give explicit consent to the processing of any
  sensitive personal data by their employer.
• Most employment contracts now include the
  employees consent to processing of personal
  data, but employers should obtain explicit
  consent before seeking and using any health
  records or medical reports.
• Sensitivities can arise where an employee is
  granted significant periods of leave (whether
  paid or otherwise) to work on rehabilitation.
• Employers should consider with employees how best
  to present it to their colleagues and should
  ensure that the employees privacy is protected
  as far as possible.

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• Drugs SMS Evidence and Legal issues at Work -
  11
• Due Process Best Practice
• Misconduct Performance Rehabilitation Which
  Way?
• For Drugs Alcohol.concentrate on performance
  problems and
• proceed with caution..
• keep accurate, confidential records of instances
  of poor performance or other problems
• interview the worker in private - if the worker
  is under the influence of drugs and is not fit to
  be interviewed, wait until the effect of the
  drugs has worn off
• concentrate on the instances of poor performance
  identified
• ask for the employee's reasons for poor
  performance and question whether it could be due
  to a 'health' problem
• discuss possible work-related causes such as
  excessive workload or too much responsibility
• discuss the organisation's drugs policy and the
  help available inside or outside the organisation
  
• agree future action
• monitor progress discuss any further problems
  if they arise.

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• Drugs SMS Evidence and Legal issues at Work -
  12
• Too Much Just Right Not Enough?? - Model
• Drinking at Work
• The consumption of alcohol at the place of work
  during working hours will only be permitted in
  licensed areas or on special occasions, such as
  reception of visitors, presentations, or seasonal
  gatherings, when prior permission must be
  obtained.
• On such occasions the provision of alcohol should
  be moderate and suitable non-alcoholic
  alternatives made available.
• Being drunk at work will be treated as gross
  misconduct any serious or repeated abuse will
  lead to dismissal.
• Misuse of Drugs at Work
• A member of staff who misuses drugs at work will
  be disciplined any serious or repeated abuse
  will lead to dismissal.

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• Too Much Just Right Not Enough?? - 2
• Action by the Individual
• Individuals who know or suspect that they have an
  alcohol- or drug-related problem are encouraged
  to seek help voluntarily.
• Action by Colleagues
• a problem drinker or a member of staff with a
  drug-related problem will come to the notice of
  colleagues through poor work performance.
• colleagues should encourage the member of staff
  to recognise their problem and to seek advice,
  either through their GP or specialist agencies.
  If this fails, colleagues are encouraged to alert
  the Managers so that more formal action may be
  taken.
• reluctance by colleagues is understandable. But
  past experience suggests that covering for
  neglected duties is not a kindness, and serves
  only to delay, or worse to prevent, a successful
  outcome.
• Action by Manager
• Wherever the Head of Department becomes aware of
  the alcohol-related problems of a member of
  staff, or it is seen that a member of staff is
  using prohibited and other substances personally,
  he/she should invite the person concerned for
  interview on a confidential basis.
• This opportunity should be taken to record
  concern for the health and possible predicament
  of the member of staff concerned, to highlight
  the support available, and to urge the employee
  to seek help.
• Action by the Business
• The organisation will assist any member of staff
  who is dependent on alcohol or drugs to find out
  about and assess their problem and to obtain
  confidential counselling.
• As a guiding principle, the business recognises
  that the condition of individuals may be capable
  of treatment to achieve the restoration of
  acceptable standards of conduct and performance.
• The business will offer support to assist a
  member of staff to cease their use and, while it
  is satisfied that the member of staff concerned
  is supporting this action, it will make available
  guidance, the provisions of the sick pay scheme,
  and withhold disciplinary action if possible.

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Too Much Just Right Not Enough?? -
Examples In 2005 Kate Moss was given her
marching orders by HM, Burberry and Chanel after
a newspaper published images of her apparently
snorting cocaine. HM has a policy that its
models be "healthy, wholesome and sound", and so
she was sacked from its upcoming ad campaign
because she breached her contract. How? - an
employer can stipulate about behaviour in
private. This is known as a moral clause and is
standard in many celebrity contracts. Could the
same happen to non-celebrity drug-dabblers? Most
regular employment contracts do not include a
moral clause. So unless an employee is caught
taking illegal drugs at work, dismissal is not
straightforward. The legality of dismissal for
recreational drug use hinges on a gamut of laws
that cover health and safety, employment, human
rights and data protection. If a case of unfair
dismissal is brought before an employment
tribunal, the onus is on the employer to prove
that drugs have had a detrimental impact on the
employee's ability to do the job. Even if an
employee is convicted of a drug offence, "the
employer would still have to prove that dismissal
was justified - with claims of disrepute only
valid if the employer was mentioned during the
legal proceedings.