If an employee is suffering with substance addiction, this can cause real problems for a small business so needs to be dealt with promptly. However, as with all issues relating to employment law, business owners must tackle the problem very carefully, so we asked employment lawyer, Sarah Chilton to explain how employers should navigate the issue.
Small businesses ought to ensure they identify and address issues related to addiction at an early stage, given the potential significant impact on work flow, internal dynamics and the health and safety of all employees within a close working environment.
Substance addiction in the workplace can often have very serious consequences for both employees and employers and may be closely linked with other conduct and/or capability issues,such as;
- Poor performance;
- Incidents of violence/harassment; and
- Other inappropriate behaviour.
It is therefore imperative that employers are fully aware of the legal framework and their obligations towards their employees in this regard.
What is the legal framework?
The Equality Act 2010 (“EqA”) prohibits various forms of discrimination that relate to a “protected characteristic”. Disability, as one of nine protected characteristics, is defined as a physical or mental impairment which has a substantial and long-term adverse effect on someone’s ability to carry out normal day-to-day activities.
There is a common misconception that alcohol or drug addiction is a disability, although it is in fact expressly excluded under the EqA, save in circumstances where the addiction was originally the result of the administration of medically prescribed drugs or other medical treatment.
There may, however, be an underlying medical condition that has resulted in or been caused by the addiction and which may separately be a disability under the EqA.
In addition to ordinary disability discrimination, the EqA also protects employees from discrimination arising from a disability.
For example, if an employee has physical impairment, which has been triggered by a substance abuse problem, the employer may be found to have committed an act of disability discrimination if it then disciplines or dismisses the employee for any conduct without seeking to establish whether the reason for the conduct is in fact the physical impairment.
However, the key question for a court to consider would be to assess whether or not the act happened because of something arising in consequence of the disability.
Employers also have various obligations under health and safety legislation; namely, a duty to ensure a safe place of work and safe systems of work for their staff. It is therefore extremely important for employers to have clear rules and policies in place regarding substance misuse, also informing employees of their own requirements to take reasonable care of themselves and others who could be affected by their actions in the workplace.
Data protection legislation may also be engaged when dealing with addiction issues; for example, in relation to alcohol or drug testing. Under the General Data Protection Regulation and the Data Protection Act 2018, the results of any such testing would likely constitute special category data, which is afforded enhanced protection under current data protection legislation.
How should employers successfully navigate these issues?
Whilst, on the face of it, an employee with an alcohol or drug addiction may not appear to have a disability under the EqA, employers should consider seeking advice from both the employee’s doctor and occupational health, where appropriate, to establish whether or not there is any underlying medical condition contributing to the addiction issues.
It may be of particular concern to an employer in the event that any medical report identifies work-related stress as being a trigger for the substance addiction, in which case employers may find themselves needing to address wider issues of stress within the workplace and facing potential personal injury and breach of trust and confidence claims.
Substance addiction is often inextricably linked with other behavioural issues in the workplace; for example, allegations of bullying and harassment, and other acts of violence.
Employers ought to handle these situations, and consider next steps, very carefully. Even though many employers, as a result of the nature of their work (for example, electrical engineering), might maintain a zero-tolerance approach to substance misuse, ACAS guidance suggests that consideration be given to measures to help employees suffering from substance abuse.
Failure to at least consider the alternatives to disciplinary action may affect the reasonableness of any sanction imposed by an employer thereafter.
Employers may find it much easier to justify findings of misconduct, or more likely gross misconduct, in circumstances where the substance misuse constitutes illegal activity, for example, the possession of certain types of drugs, therefore providing a more robust basis for harsher sanctions to be applied.
Top tips on managing staff with addiction
When dealing with substance addiction in the workplace, employers should consider the following:
1. Policies & Procedures
Implementing and maintaining robust policies and procedures that deal with identifying and managing substance misuse, and the basis for any disciplinary action.
Offering employees various types of support – for example, adjusting their duties, offering time off work to seek medical help (in which case it will be important to consider facilitating a phased return, where possible) and having regular discussions with the employee in order to carefully monitor the situation;
3. Appropriate disciplinary actions
Dealing with any ongoing disciplinary issues appropriately; if appropriate, suspending any disciplinary proceedings in circumstances where substance misuse has been a contributing factor, on the basis that the individual considers rehabilitation; and
4. Staff training
Delivering training to all staff regarding how to deal with substance addiction, both from the viewpoint of the individual suffering from addiction and their fellow colleagues, who may be exposed to any resultant inappropriate behaviour or other failure to comply with working practices.
Small business difficulties
It may be particularly difficult for smaller businesses to devote the level of administrative and financial support required to accommodate some of the measures described above, therefore such companies will need to undertake a proportionality exercise when considering how best to support any employees suffering from addiction.
Maintaining confidentiality may also be problematic, especially within smaller teams, which may discourage employees from speaking up about their substance addiction or cooperating in any subsequent investigation.
Given the legal definition of a disability and its express exclusion of alcohol or drug addiction, employers may be quick to discipline, or even dismiss, employees for substance abuse in the workplace.
However, there may well be an underlying medical condition and therefore employers would be well advised to err on the side of caution and properly investigate the situation (for example, by seeking an occupational health report) in order to avoid discrimination and ensure the health and safety of all of their employees.