Recent allegations that super model Kate Moss has more than dabbled in drugs together with the introduction of a new alcohol licensing system next month has highlighted some of the pitfalls of managing drugs and alcohol in the workplace; Amanda Hope an associate in the employment team at Norton Rose explains the issues.

It has been hard to miss the furore surrounding recent allegations that Kate Moss has been taking drugs. The issue has resulted in her being contractually dropped from three fashion houses.

Next month sees the introduction of a new alcohol licensing system when the Licensing Act 2003 comes into full effect, which will allow businesses potentially, to serve alcohol all day.

Impact on employers:
Both issues have raised employer awareness about the need to become more alert to drug/alcohol abuse amongst employees and to ensure they are properly equipped to take action.

Recent studies showing that 14.8 million working days are lost each year as a result of alcohol, highlights the extent of the problem. Even where employees do attend work, performance levels are often impaired by the after effects.

Not only are employers keen to take action to maximise profitability, they also have a duty of care (at common law and under the Health & Safety at Work Act 1974), to ensure so far as is practicable, the health, safety and welfare at work of employees.

Accordingly, employers allowing employees under the influence of drink/drugs to continue working, could be in breach of this duty by putting such individuals and others (for example customers or fellow employees), at risk.

Tackling the problem:
Whilst disciplinary action can be taken against employees drinking alcohol or taking drugs on work premises or during working hours, what can employers do where it is known or suspected that alcohol and/or drugs have been taken outside working hours and premises?

Article 8 of the European Convention on Human Rights (which is incorporated into English law by the Human Rights Act 1998), provides all individuals with the right to respect for private and family lives.

Employers can therefore only take action where performance is actually affected or where an employee’s behaviour brings the employer into disrepute (the Kate Moss debacle being an example of this scenario, albeit Kate Moss is not thought to have been employed by the fashion houses concerned).

Where alcohol/drug dependency manifests itself via gross misconduct for example violence, summary dismissal may be justified. However, it is often manifested by poor performance for example, erratic behaviour.

In such cases, alcohol problems should be dealt with as a capability issue and drug dependency as a misconduct issue, given that the use of controlled drugs is a criminal offence. In both instances, disciplinary procedures must be followed prior to any decision to dismiss, failing which employees with more than one years’ service can bring unfair dismissal claims.

Claims under the Disability Discrimination Act 1995 (the “DDA”) are also possible. Whilst alcohol/drug misuse does not constitute a ‘disability’ as recognised by the DDA, employers must consider whether it is a consequence of a condition which does for example depression.

If so, extensive protection is provided (including rights not to be treated less favourably than others and for reasonable adjustments to be made to enable employment to continue so far as possible) and must be taken into account both during employment and at the time of dismissal.

Screening employees:
Evidence of alcohol/drug abuse is helpful to justify disciplinary action. Whilst prospective employees can be required to undergo drug tests (subject to the provisions of the Data Protection Act 1998 and the Human Rights Act 1998), the position is more difficult with existing employees.

Where performance is impaired and there is a contractual right to obtain samples, testing may be justified in order to protect the employee and others. In the absence of such indications, random testing will only be justified where it is actually necessary to ensure safety (for example, for employees operating machinery).

If employees refuse to consent, the obtaining of samples will constitute assault and battery under common law (even where there is a contractual right to do so). If an employee is subsequently dismissed as the result of such a refusal, the Article 8 right to privacy will be balanced against any justification offered by the employer as part of the overall assessment of whether the dismissal was fair.

Drug and alcohol policies:
Detailed alcohol and drug policies (compliant with the Data Protection Act 1998) are a key way to protect employers’ interests. Policies must make clear:

• the rules and procedures in place;




• the possibility of testing being carried out and the process that will be followed;




• that information obtained will be kept to a minimum;




• that the procedures used are subject to rigorous quality control;




• that confidentiality will be observed;




• the disciplinary action that will be taken in instances of misuse;




• and where employees refuse to be tested where there is a legitimate concern.

Given that there is no duty for employees to report the misdeeds of fellow employees (as there is for senior employees and directors), the policy should also strongly encourage employees to relay any concerns or suspicions they may have about others to their line manager on a confidential basis. It is also critical to ensure the policy is applied consistently and that all managers are trained on it.

With this type of policy in place, employers will be better placed to tackle the rapidly escalating problem of the detrimental impact which drug and alcohol abuse is having on the workplace.