Employee abuse of alcohol in the workplace is something that worries every employer. It can lead to health problems for the affected employee and serious risk to the safety of those around them.

All workplaces need to take steps to deal with the problem, but what form should those steps take? In this briefing, law firm rradar says it’s not quite as simple as immediate dismissal.

What is alcohol misuse?
This is defined as “the problematic use of alcohol”, where “problematic” is defined as “the point at which an individual uses a substance so regularly or in such quantities that they start to depend on it in order to feel normal in everyday life”.

This is quite different from the occasional use of alcohol, which may have no long-term or serious ill effects. It’s important to realise that dependence can develop into addiction and therefore, the earlier the abuse can be identified and dealt with, the more likely it is that addiction, with all its negative effects, can be avoided.

Dealing with an employee who is misusing alcohol
Under the Health and Safety at Work Act 1974, employers have a legal duty to ensure the safety of their staff, as far as is reasonably practicable.

Section 2 places a duty on an employer to ensure, as far as is reasonably practicable, the health, safety and welfare at work of their employees.

Section 7 of the Act requires employees to take reasonable care of the health and safety of themselves and others who may be affected by their acts or omissions at work.

This means that if an employer knowingly allows a member of staff to misuse alcohol and this leads to the safety of the employee or that of another being put at risk, the employer could face prosecution.

The Management of Health and Safety at Work Regulations 1999 place a duty on an employer to assess the risks to the health and safety of employees. If an employer knowingly allows an employee to continue working while under the influence of alcohol and that puts the employee or anyone else at risk, the employer lays themselves open to prosecution.

The Road Traffic Act 1988 says 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.

The Transport and Works Act 1992 makes it a criminal offence for certain workers to be unfit through drink and/or drugs while working on railways, tramways and other guided transport systems.

Helping the employee
Since a Tribunal is likely to decide a dismissal is unfair if no attempt was made by the employer to help the employee, it is important that the employer puts an assistance programme into place as soon as they are made aware of the problem.

These efforts should be documented to ensure evidence is to hand if the issue develops into a Tribunal claim. For many employees who have alcohol problems, knowing that the employer will be sympathetic and try to help them is a big incentive to come forward and voluntarily admit that something is wrong.
That’s why it is vital that the employer takes seriously the confidentiality of information they may receive regarding this subject.

Many alcohol policies take a punitive approach to the problem and fail to address the need for assistance, support and encouragement for employees who have admitted that they have a problem.

It’s certainly not the case that alcohol abuse will always ring down the curtain on an employee’s career.
The employer needs to have in place, either in-house or sourced from an external provider, a programme that will support workers who are identified as needing help. As soon as employers become aware that there is a problem, they should start to carry out the following actions:

• Identify times at which the employee’s performance suffered due to suspected alcohol abuse.
• Arrange a confidential interview for the affected worker as soon as possible.
• Focus the interview on the instances of poor performance that have been identified.
• Ask the worker if they would like to advance an explanation for their poor performance, which could include a health problem that does not relate to alcohol abuse.
• Mention the alcohol policy (if it is thought appropriate) and the help that is available inside the company or from external providers.
• Discuss, plan and agree a programme of action to be taken and monitored.
• Schedule meetings to monitor progress and discuss any further problems, should they occur.

Why have an alcohol policy?
An alcohol policy is there to outline the employer’s position on the use/abuse of alcohol so that everyone is aware of what is permitted/not permitted and there is no room for ambiguity.

What’s considered acceptable regarding alcohol consumption can vary between employers. Different sectors have different attitudes and operational needs may play an important role in setting acceptable standards – a marketing or sales department may need to include alcohol in publicity events, whilst for employees operating heavy machinery, any consumption of alcohol during working hours could be very dangerous or even fatal.

Prior to developing a policy, it’s best to find out what problem exists, if any. That can be done through checking records that are kept on sickness, disciplinary records and accident investigation reports. Even if there’s no current evidence of a problem, the employer should still take steps to develop and implement a policy, since the problem may well arise in the future.

What should a policy contain?
Amongst other things, many policies contain the following features:

• A named person who has overall responsibility for implementing the policy.
• A regular process of monitoring and reviewing, based on feedback and outcomes.
• Non-judgemental support for any employees who seek help.
• Details of the sources of assistance available to employees, both internal and external.
• An assurance of confidentiality at all stages of the process.
• Guidance on whether alcohol can be consumed while at work or on work premises.
• Who the policy covers – all employees, including senior management.
• The point at which disciplinary action will be taken and the circumstances that will lead to this happening.
• What training is available to ensure managers can spot the early signs of abuse.

The introduction of the policy should be accompanied by an information and awareness campaign to ensure that all employees are familiar with its contents.

If an employer is unsure about what to put in their policy, consulting their legal advisors is a good move that guarantees legislative and regulatory compliance.

Defining the terms
The policy also needs to properly define the terms it uses; in the case of McElroy v Cambridge Community Services NHS, the policy was riddled with gaps and the terms were sufficiently vague that a dismissal for gross misconduct failed. However, in the case of Now Motor Retailing Ltd v Mulvihill, the policy was quite explicit.

Discretion
Even if the policy does define turning up to work smelling of alcohol as a disciplinary offence, it may be more appropriate to issue an official warning if it’s the first time this has happened. Managers and members of staff who are making such decisions should have appropriate training relating to alcohol issues since this may enable them to make more considered decisions.

An important caveat
Alcohol abuse is often viewed as a serious matter and there is often an emotive response to discovering that it is going on in the workplace.

As a consequence, many employers put the Alcohol Policy into the Disciplinary Policy. This is sending out the message that those who are misusing alcohol will be investigated and punished rather than helped to overcome misuse.

Staff who have this problem need the confidence to come forward and seek help either for themselves or others without fear of disciplinary action.