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 aproblem

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, emails, 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 SolicitorsEmployment Team

Oliver McCann – Leanne Eddleston

Rawlings HouseExchange Street

BLACKBURNBB1 7JN

Ninth Floor80 Mosley StreetMANCHESTER

M2 3FXt: 0844 8000 263www.taylors.com