Rachel Haake gets legal guidance this week from Sarah Bird, employment law expert, Browne Jacobson and Martin Brewer, a Partner with the employment team of Mills & Reeve on the legalities of disciplining an employee for refusing to accept referral treatment for drug and alcohol addiction.
The question:
Can an organisation discipline an employee for refusing to accept referral treatment upon the diagnosis of alcohol or drug addiction?
Rachel Haake
The answers:
Sarah Bird, employment law expert, Browne Jacobson
Where an employee’s performance, behaviour or attendance at work is affected by alcohol or drugs an employer may be able to take disciplinary action against them.
However, an employer should be extremely careful about taking sanctions against an employee without doing some detective work first. Increasingly, dependence on alcohol and illegal drugs is being viewed by the medical profession as a serious illness.
Therefore employers should consider the provisions of the Disability Discrimination Act carefully to avoid claims of discrimination on the grounds of disability. For instance, whilst addiction to alcohol or drugs is not a disability as such, employees with a medical condition or health problem resulting from an addiction (i.e. liver problems caused by alcohol abuse) may be considered as disabled and thus a claim of discrimination could be pursued.
A full investigation should be carried out in line with any alcohol and drug abuse policy and medical advice sought. It is important that employers encourage an employee to undergo a rehabilitation programme. If an employee refuses to undergo treatment an employer should explore the reasons behind the refusal rather than taking disciplinary action against them for it.
Sarah can be contacted at: sbird@brownejacobson.com
Martin Brewer, is a Partner with the employment team of Mills & Reeve
Rachel, you cannot force an employee to undergo treatment. What you can do is discipline an employee for either failing to obey a lawful and reasonable instruction or for failing to reasonably co-operate with you.
Here you clearly have concerns about this employee.
You want them to co-operate with your referral. They ought to co-operate by attending the referral although, as I say, this falls short of imposing treatment on them. I think that you can insist that the employee at least attends.
Presumably the employee’s performance is suffering. If that is the case then a capability procedure might be more appropriate to follow. The referral would be part of the support offered by you as part of that process. This is analogous to an underperforming employee refusing to, for example, attend training which is designed to help and support them.
The refusal to be helped may be a breach of their implied duty to co-operate and/or obey but in the end, whatever the legal analysis, the employee’s performance won’t improve with the inevitable outcome.
Martin can be contacted at: martin.brewer@mills-reeve.com
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