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What’s the answer? Drug use outside work

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David Kirbitson gets legal advice this week on whether disciplinary action can be taken against employees using recreational drugs in their own time.


The question:
“If you are aware an employee is using recreational drugs in their own time is there any disciplinary action that can be taken. Counselling and support has been offered but is voluntary, also there is no compulsory drugs testing within my organisation.”

David Kirbitson

The answers:
Nicholas Snowden, senior solicitor at Clarkslegal LLP
Filing
The short answer is that you can only take action in these circumstances in one of the following circumstances:

  • Behaviour indicates that the employee is under the influence of drugs while at work

  • There is a health and safety risk because of the nature of the employee’s job or the environment in which the employee works

If there are health and safety issues, it may be legitimate for you to bring in a policy which allows you to carry out drug tests for those categories of employees for whom the health and safety issues are relevant.

If neither of the above applies to this situation, there is little you can do about the employee’s drug taking without taking a significant risk of prompting a claim.

Nonetheless, you will want to monitor the employee’s performance to ensure that proper professional standards of conduct are not allowed to slip and that, if they do, you can take appropriate performance management action.

Nicholas Snowden can be contacted at [email protected]

Helen Badger, employment law expert, Browne Jacobson
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Staff use of recreational drugs outside work may be considered undesirable, but unless an employee’s ability to do the job is in some way affected, there is little an employer can do.

I assume the situation has been discussed with your employee, given that counselling and support have been offered. This is the right action to take, and you should continue to offer this. However, if the employee does not take this offer up, I’m afraid that it is a matter purely for the individual.

If the use of recreational drugs does affect your employee’s work, however, either due to incompatibility with his or her role, (a youth outreach drugs counsellor, for example) or because the habit is affecting performance, then disciplinary action may be appropriate.

If either of these is the case, you should commence what is called a “capability procedure”. This entails first discussing the matter with the employee informally, explaining your suspicions about the drug use, why you are concerned about this, and how the matter is affecting performance.

If matters do not improve from there, then more formal action can be taken. This would involve disciplinary hearings and warnings, possibly leading to dismissal on the grounds of inability to do the job if no improvement should occur.

Should you have reasonable suspicion that an employee has reported for work under the influence of drugs, then the situation is more serious. This potentially amounts to gross misconduct, and as such could justify summary dismissal of the employee.

If your staff member denies taking drugs, you could ask them to consent to a drugs test. If they refuse, you can still proceed with a disciplinary process, taking into account the symptoms that have generated suspicion that the employee was under the influence of drugs at work, and their refusal to undergo a test.

Provided that after a reasonable investigation you have justifiable grounds to believe the employee was under the influence of drugs whilst at work, and a proper disciplinary process has been followed, then dismissal is likely to be fair.

Helen can be contacted at: [email protected]
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HRZone highly recommends that any answers are taken as a starting point for guidance only.

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