Drug and Alcohol dismissal can be costly

Drug and alcohol misuse is always a hot health & safety topic in today’s businesses. For employers failing to manage this correctly, it can be a costly error.

The latest statistics available are as follows:

Research by the Chartered Institute of Personnel and Development (CIPD) in 2014 highlighted that drugs and alcohol are the contributory factors in 26% of workplace accidents, costing the UK more than £4bn a year.

A recent ‘Safety PAL’ product demonstration quickly evolved into us discussing ‘Drug and Alcohol at work’

The company we were demonstrating too, asked: “How would Safety PAL of helped with a recent ‘unfair dismissal’ case we had”?

I asked, “So what happened?”

The company explained how they suspected an employee was under the influence of drugs or alcohol while at work, their suspicion was based on some basic signs:

• Unusually irritable
• Tendency to become confused
• Impaired job performance
• Poor time-keeping

Fast forward: This resulted in a boardroom conversation (not disclosed) and an instant dismissal of the worker. The parting statement was:

”you are a danger to yourself and others”

The company continued to explain how the employee returned days later with legal support claiming unfair dismissal.

I asked if they had followed the standards and procedures as detailed in their companies:

• drug and alcohol policy
• drug and alcohol testing procedures
• health and safety policy

This reply was wonderful! (Political answer)

“We are extremely passionate about ensuring all our employees have a better understanding of drug and alcohol misuse whether deliberate or unintentional. Even making the employees aware that misuse can harm the misuser both physically and mentally as well as the business and sometimes co-workers”

I suspected the real answer was No!

Note: It’s the law to have in place strict guidelines and policies to effectively manage drug and alcohol in the workplace.

The result of the legal claim was the company incurring large financial losses as they lost the unfair dismissal case.

So what did the company do wrong? How would you manage suspected drugs & alcohol in the workplace differently?

I’m sure we all agree, drug, substance and/or alcohol use in the workplace is not acceptable. We know the company’s dismissal route was probably used to protect the business and employees from the potential harm the misuser could cause!

Note: all the signs above shown are not limited and could be caused by other factors, so always seek medical advice from your company’s medical representative.

The legal jargon

You have a general duty under the Health and Safety at Work etc Act 1974 (HSW Act) to ensure, as far as is reasonably practicable, the health, safety and welfare at work of your employees. You also have a duty under the Management of Health and Safety at Work Regulations 1999, to assess the risks to the health and safety of your employees. If you knowingly allow an employee under the influence of drug misuse to continue working and his or her behaviour places the employee or others at risk, you could be prosecuted.

The Transport and Works Act 1992 makes it a criminal offence for certain workers to be unfit through drugs and/or drink while working on railways, tramways and other guided transport systems. The operators of the transport system would also be guilty of an offence unless they had shown all due diligence in trying to prevent such an offence being committed.

The Road Traffic Act 1988 states that any person who, when driving or attempting to drive a motor vehicle on a road or other public place, is unfit to drive through drink or drugs shall be guilty of an offence. An offence is also committed if a person unfit through drink or drugs is in charge of a motor vehicle in the same circumstances.

The principal legislation in the UK for controlling the misuse of drugs is the Misuse of Drugs Act 1971

The possession of some drugs is illegal, exposing the misuser to the risk of criminal charges as well as causing harmful effect on their health.

Before taken ultimate action, you should always take legal advice from a specialist team. The HSE website in partnership with the Home Office and many other departments offers a full guide to help owners and managers of businesses and other organisations, particularly small and medium-sized enterprises, deal with drug-related problems at work.

So what should you do if you suspect drug or alcohol use in your organisation?

Always seek advice from your company’s medical representative, as you may not have the authority to make decisions regarding the fitness for work of any individual being tested.
In order to protect your company from unfair dismissal, you must as part of your immediate action do all of the following:

• Your drug testing procedure should form part of your overall drug policy.
• The employee has to have agreed with your policies (read, understood and signed) before testing is initiated.
• You need to provide a statement assuring employees that a drug/substance problem will be treated in strict confidence, subject to the provision of the law.
• You need to explain to the employee that disciplinary action will be taken if help is refused and/or impaired performance continues.
• Explain that dismissal action may be taken in cases of gross misconduct.
• State that possession/dealing will be reported immediately to the police and that there is no alternative to this procedure.
• Help and rehabilitate: their absences will be regarded as normal sickness.

Help: If you don’t have suitable standards or procedures in place for managing health and safety, this is easily fixed, the HSE provide many free links to essential information and also free downloads, see links further on in this article.

What you need to know about drugs & alcohol

The law states that disciplinary action may be taken as a last resort

You could be judged (by an industrial tribunal) to have unfairly dismissed employees whose work problems are related to drug misuse if you have made no attempt to help them.

The law also advises you may need to temporarily move them to another job if their normal work is safety-critical, do not dismiss them.

Why did the company in this article fail to win the unfair dismissal case?

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 were convicted of a drug offence, as the employer, you would still have to prove that the dismissal was justified.

Note: There are many arguments from unions, lawyers and business owners that testing fails to tackle the root cause of job-related drug and alcohol misuse. They go on to state that BAT (best-applied technique) is to treat drug and alcohol problems in the workplace as sickness or capability, not disciplinary action!

So, let’s return to the original question:

What did the company do wrong? How would you have managed it differently?

We truly hope your new knowledge will provide essential information to first seek advice, implementing your standards and procedures and not instantly dismissing the employee.

How would Safety PAL have helped in managing this situation

Safety PALs unique quality is that you have the ability to add all your employees to a common cloud-based management system.
Upload your company policies, standards and procedures and every employee receive these documents electronically.

Safety PALs unique holistic approach can prove the employee received, opened, read and understood.

We create company protection by providing the evidence an employee really has ‘read and understood’ your company policies, but how can we help rehabilitate?

Help and rehabilitation will need a personal touch, scheduled sessions with your medical advisors and may be off-site scheduled sessions, but Safety PAL can help by using our media tool, you have the ability to add Drugs and Work Videos, add apply questions and specific parameters.

Also, use our Alerting Tool to get essential drugs and alcohol information directly to your employees via their PC or smart device.

Still more, our linked features will ensure the employees training profile is updated each time a video test is taken and/or a document ‘read and understood’

Here at Safety PAL, you don’t just subscribe to our unique health and safety solution, you always have access to support from our professional team of representatives.

Informative links

http://www.hse.gov.uk/alcoholdrugs/

Download the HSE Drug Misuse at work guide for employers INDG91 (rev2)
http://www.hse.gov.uk/pubns/indg91.pdf