Thursday 1 December 2011

Drugs and Alcohol at Work – Key Issues for HR Practitioners

1. Issues  Drinking or taking drugs whilst at work  Being under the influence of drugs or alcohol at work  Prescribed drugs  Absence caused by drugs or alcohol  Introducing and/or enforcing a policy  Tolerance levels  Testing, if at all  Disciplinary or occupational issue?  Strike???

2. Relevant Law  HSWA 1974  Management of Health & Safety at Work Regs 1992  Transport and Works Act 1992  Misuse of Drugs Act 1971  Road Traffic Act 1988  ERA 1996 – s98 (unfair dismissal)  Equality Act 2010?  Human Rights Act 1998?  Data Protection Act 1998?

3. Need for Policy  Sets out clear guidance and rules  Allows employees to understand when support may be available  Allows employees to understand when the disciplinary procedures may apply  Gives guidance to managers and supervisors so they know what action to take when faced with a problem  Helps meet legal responsibilities  Helps reduce risk, accidents and absenteeism  Reduces private healthcare premiums

4. CIPD Stats  Just under 60% have rules in place re: drugs and alcohol  60% use disciplinary procedure when managing drugs and/or alcohol misuse at work  Just over 25% use a capability procedure as part of their approach to the issue

5. Policy Implementation or Alteration  If you need to introduce/amend a policy, much better to consult with and gain the support of the workforce  Works committee/safety committee  Message needs to be that purpose is health, safety and welfare orientated  Impact assessment

6. Key Elements of Policy  Aim/objectives – policy statement as to why it exists and who it applies to  Responsibility – who has overall responsibility and who will be tasked with enforcement  Definitions – what constitutes misuse of drugs/alcohol at work – not limited to just recognised drugs or alcohol – consider possible solvent misuse  What the rules are – at work, outside of work, at work functions/business meetings, tolerance levels (if any) and applicable to which employees

7. Key Elements of Policy [cont]  Support mechanisms for those with a problem, such as counselling and rehabilitation schemes  Confidentiality aspects for those that confess to drug/alcohol problems  Disclosure of use of prescription drugs which may impair ability  Testing  When disciplinary action may be taken and what would constitute gross misconduct  When issues may be reported to the Police

8. Testing  Does it have to be contractual?  Pre-employment screening (35% safety critical)  Routine or occasional random (27% alcohol, 20% drugs safety critical)  For cause – after accident, incident, part of rehabilitation and/or suspicion (40% safety critical organisations)  Across which employees

9. Testing [cont]  How will testing be conducted (breath, urine, hair) – 55% breath and 64% urine (alcohol), 20% saliva, 4% hair (drugs)  Who will be responsible for it and ensuring equipment calibrated  Safeguards for test results  Implications for refusal to comply with request for testing

10. CIPD Stats  22% carry out testing, further 9% were planning on introducing testing  65% do not test at all and have no plans to test  Most common approach is to test when employee suspected – “for cause”  10% use random testing, much greater in safety critical roles

11. Education and Training  Key element to any successful drugs and alcohol policy  Particularly relevant to the effects of drugs and alcohol and how long those effects last for  Induction on policy and rules, regular awareness campaigns by newsletters, s, intranet  Training to management on spotting signs, handling and testing  Only 33% train their managers/supervisors as part of their efforts to communicate policies on drugs and alcohol  Only 22% train staff generally

12. FAQS 1. Can an employer undertake random drug or alcohol testing of all employees? 2. What should the level of tolerance be to a positive test? 3. What if an employee refuses to submit to a test under the contract of employment or policy? 4. Are there any data protection issues arising from drug and alcohol testing? 5. Can an employer immediately dismiss someone if they test positive for drugs or alcohol?

13. FAQS [cont] 6. Do we have to offer counselling or rehabilitation first? 7. Will an employee be “disabled” for the purposes of the Equality Act 2010 if they are addicted to drugs or alcohol? 8. Is there a possible breach of the Human Rights Act 1998 and the European Convention of Human Rights by drugs and alcohol testing? 9. Is an employer responsible for employees drinking alcohol at works parties?

Taylors Solicitors Employment Team Oliver McCann – Leanne Eddleston Rawlings House Exchange Street BLACKBURN BB1 7JN Ninth Floor 80 Mosley Street MANCHESTER M2 3FX t: