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Drug and alcohol misuse at work

Royal Mail has recently launched an investigation after footage appeared to show postal workers under the influence of drugs. According to a caption, the workers accidentally ate 'hash brownies' and had to be helped because of the impact the drugs had on them. The video claims staff ate the brownies between 5.30am and 7.30am. The undelivered parcel, marked "Edibles by Pablo Chocobar" was said to have gone uncollected for a month. The investigation will determine what further action might be taken. Royal Mail have also taken the opportunity to remind their staff of the high standards which it expects them to uphold.

Whilst the case makes for an interesting situation it also provides a useful reminder on what should be done concerning drug and alcohol misuse at work.

Drug and alcohol misuse is the use of illegal drugs and misuse of alcohol, medicines and substances. Employers should consider these warning signs, which could indicate drug or alcohol misuse:

• unexplained or frequent absences
• a change in behaviour
• unexplained dips in productivity
• more accidents or near-misses
• performance or conduct issues

It will then be important to engage in an open dialogue with the staff members in question in order to find out more about why they have taken drugs. It would also be a useful exercise to ask the employees what they know about the effects of drugs and alcohol on health and safety and the restrictions or rules on drug and alcohol use in your business.

If the kind of work you do is safety critical and drug and alcohol misuse could have a serious impact of significant elements of the role such as, using machinery or operating heavy lifting equipment, this information should feed into relevant risk assessments. Where employees in safety-critical jobs seek help for alcohol or drug misuse, it may be necessary to transfer them to other work, at least temporarily.

Furthermore, a relevant drug and alcohol policy should always form part of your organisation's overall health and safety policy. If an employee tells you they have a drug or alcohol problem, an effective policy should aim to help and support them rather than always considering dismissal. But it should also highlight when you will take disciplinary or other action, for example, that you will report drug possession or dealing at work to the police straight away.

You could also increase awareness by including an explanation of drug and alcohol misuse in your induction process for all new employees. Such an explanation should be clear about:

• Recognising the signs of drug or alcohol misuse
• The organisation's rules on drug and alcohol misuse
• What to do if an employee is suspected of misusing drugs or alcohol

The law:

Many people who have disabilities or particular conditions require prescribed drugs to help them live a normal life and could not work without them. Taking prescribed drugs at work is not illegal. The important consideration will be making sure there is an agreement and understanding in place between the individual in question and their employer, not only so the employer is aware but also so reasonable adjustments can be put in place if they are needed.

Addiction is not by itself a disability but employers should be cautious that elements that may have caused the addiction, such as issues with pain or depression, or consequences of the addiction, such as liver damage, could likely be disabilities and employers should therefore be cautious.

However, it is a criminal offence under the Misuse of Drugs Act 1971 for any person knowingly to permit the production, supply, possession and use of controlled drugs on their premises.

The possession, sale or knowingly being under the influence of drugs at work are likely some of the most serious acts of misconduct that an employee may commit at work.

In most situations involving drugs, particularly where it is suspected that the employee is under the influence of drugs, suspension will invariably be appropriate. The employer should then fully investigate the issue, even in situations where the misconduct may appear obvious. Depending on the outcome of the investigations, disciplinary action may follow, for misconduct at work. Alternatively, if it is established that the employee has an alcohol or drug addiction, the employer may, depending on its policies and procedures, offer a programme of support with a view to rehabilitation.

When dealing with drinking or drugs as a disciplinary issue it is important that disciplinary procedures are correctly followed.

Assuming that an employer's request for an employee to submit to a test is reasonable and proportionate in the circumstances, a refusal to undergo testing may also amount to misconduct, on the basis that it constitutes a refusal to follow a lawful and reasonable instruction. It may therefore form grounds for disciplinary action. However, this will depend on various factors, including:

• The reasons why the employer introduced the testing.
• The means used to undertake the testing.
• What information has been given to staff about it.
• The particular reasons why the employee is being asked to undergo testing.
• Any particular reasons they may have for refusing.

In the current situation involving postal workers, it might be that the more serious acts of misconduct regarding these employees is not necessarily around the issues of ingesting the brownies. A key issue the Royal Mail are likely going to need to establish is if the members of staff knew these were 'hash brownies' or whether they thought they were regular brownies. If the employees unknowingly ingested these drugs then this by itself is unlikely to be gross misconduct. Of greater concern for the employees in this situation is how Royal Mail consider employees eating a parcel meant for one of its customers as that is likely a more serious issue in this case.

For more information contact Emma Swan in our Employment & HR department via email or phone on 01254 222354. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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