Sarah Chilton, employment lawyer with CM Murray LLP and speaker at iCAAD London 2019 offers advice to employers across multiple industry sectors on how to handle a member of staff suffering with an addiction
In the UK, employees who are disabled under the Equality Act 2010 (“the Act”), are protected from discrimination and harassment. A disability 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.
Addiction is expressly excluded from the definition of disability, unless it arose as a result of taking medically prescribed drugs or other medical treatment.
This exclusion might make employers think that they can disregard disability discrimination when dealing with employees with an addiction, but it is not that straightforward.
Addiction may cause a condition which is itself a disability, or, may present because of an underlying disability. Both depression and liver cirrhosis have been recognised as disabilities where they arose from alcohol or drug use. It is harder for employers where addiction is a manifestation of a disability. The courts will examine closely the reason for the treatment of the employee and whether it was because of the underlying disability, or the addiction.
Spotting an addiction
Addiction frequently appears as an underlying cause in circumstances of misconduct, absenteeism and poor performance. But it is not just addiction; one off instances of taking drugs or drinking alcohol can also be contributory factors. In particular, allegations of violence or sexual harassment in the workplace (or at work related social events) are very often triggered by drinking alcohol. In that context, having consumed alcohol is unlikely to provide any sort of defence or mitigation, but an employer should tread carefully.
If there is any suggestion that drinking was as a result of stress, anxiety or depression, or there was an adverse effect due to medication, the employer should consider obtaining a medical report to understand the medical position before proceeding with any disciplinary sanction.
Even where there is no disability present, if the employee suffers from a substance addiction and that has contributed to their behaviour, employers should consider carefully their options before moving to dismiss. The ACAS guide to discipline and grievances at work suggests that consideration be given to measures to help those employees suffering from drug or alcohol abuse and failing to, at least, consider what help could be put in place as an alternative to a disciplinary sanction, may affect the reasonableness of any sanction.
Even in the seemingly straightforward situation of an employee presenting for work drunk or under the influence of drugs, dismissal may not be a fair response. Whilst being drunk or under the influence of drugs is likely to constitute misconduct, or gross misconduct justifying dismissal, an employer can’t automatically assume that there will be grounds for termination.
In McElroy v Cambridgeshire the Employment Tribunal held that the summary dismissal of a healthcare assistant for coming to work smelling of alcohol was unfair and not the actions of a reasonable employer in the absence of evidence. But, in another case, where the employee was found in possession of cannabis at work, dismissal was reasonable – Asda v Coughlan. The fact that the substance is legal or illegal is likely to be a relevant factor for the employer to take into account in determining sanction.
It may also be appropriate in some circumstances to suspend disciplinary action where alcohol or drugs have been a factor, on the condition that the employee follows a suitable course of action, such as rehabilitation. Factors which employers may wish to consider here include whether there is a health and safety risk of not dismissing the employee, the severity and impact of the alleged misconduct and whether the employee’s work has contributed to their addiction.
What is clear is that just because drugs or alcohol are involved, it doesn’t negate the need for thorough investigation, just like any case of alleged misconduct or poor performance. In addition, the employer should consider seeking a medical report to establish the true medical position, particularly if the employee has an underlying disability.
The Act provides protection for employees from discrimination arising from disability. For example, an employee is under-performing and has a substance abuse problem which has resulted in the employee suffering from severe depression. The employer should not simply discipline or dismiss the employee for their poor performance, even if that performance is below the standard expected of them in their role. If the employer charges forward with action against the employee, and it transpires that the cause of the under-performance is their depression, then the employer may have committed an act of disability discrimination.
This will not mean that someone with a substance abuse issue who suffers from depression will always be so protected – the act (prompting the potential disciplinary action) itself must happen because of something arising in consequence of the disability.
Employers could consider offering the employee time off to seek medical help. If doing this, it is important to consider how that employee will return to work. As with absence for illness, a phased and managed return is recommended, and is likely to see the best prospect of success.
Advice should be taken from the employee’s treating physician, particularly when dealing with a specialist issue such as addiction, perhaps as well as an occupational health physician, specialising in workplace medical issues. The need for a phased return will be particularly acute when the addiction arose due to something related to work, extreme stress for example and, in such circumstances, consideration must be given to what else might be done for the employee, within reason, to prevent the situation reoccurring.
Employers should consider including relevant policies in their staff handbook. Key policies to allow an employer to deal appropriately with addiction and substance use and abuse in the workplace include appropriately worded disciplinary policies, a health and safety policy and a drug and alcohol misuse policy, including any drug testing provisions which apply.
Employers should also consider the type of support they may wish to offer those suffering with addiction issues, including time off, medical treatment and support packages. Some employee assistance programmes will sometimes include support for addiction issues and these could be offered to employees.
Although addiction is not a protected characteristic under the Equality Act 2010, which protects people with disabilities from discrimination in the workplace, this doesn’t mean that dismissing someone with an addiction will always fall outside the Act. A dismissal could be still be considered discriminatory if there is an underlying or related issue amounting to a disability and reasonable steps were not taken either to establish this, or to provide adequate support for the employee.