November 01, 2019
It is important that Employers are clear as to what their obligations are if an Employee attends for work under the influence of drugs and/or alcohol (an intoxicant).
An “intoxicant” is defined in the Safety, Health and Welfare at Work Act 2005 as “alcohol and drugs and any combination of drugs or of drugs and alcohol”. This definition encompasses both legal and illegal substances, it includes prescribed drugs and over the counter medications.
Being under the influence of an intoxicant in the workplace can lead to accidents, poor performance and/or behavioural difficulties, and may be dealt with by Employers as a disciplinary issue. Employees must also ensure that s/he are not under the influence of an intoxicant to the extent that s/he is in such a state as to endanger his or her own safety, health or welfare at work or that of any other person. Employers have a statutory obligation to take all reasonable steps to eliminate or reduce risks of unsafe work environments, to include risks created by Employee substance abuse, having a policy and procedure in place to test Employees for intoxicants may be merited.
Intoxicants Policy
It is recommended that each and every Organisation should have a clear and detailed intoxicants policy (often referred to as a drugs and alcohol policy) in place. Such a policy should include details in relation to intoxicants in the workplace, how an instance where there is a positive case of intoxicant will be dealt with, and the possible consequences of testing positive for such an intoxicant, that this may be considered to be gross misconduct, and will have consequences up to and including dismissal. Like all other policies, this policy should be very clearly worded and easy to comprehend.
Even if an Organisation has a clear and easy to comprehend policy on intoxicants in the workplace, and consequences include dismissal, Employers need to be mindful that if an Employee has a problem with drugs and/or alcohol this can be defined as a disability, and Employers have an obligation (under the Employment Equality Act, 1998) to not discriminate against Employee’s on 9 grounds, with disability being one of these 9 grounds. This is evident in A Government Department v An Employee (ADE/05/19), the Equality Officer referred to the definition of alcoholism as “.. a primary chronic disease with genetic, psychosocial and environmental factors influencing its development and manifestations…. It is characterised by continuous or periodic impaired control over drinking.”
Testing
Organisations should carefully consider whether there is a need to carry out such testing, as the third-party forums may not look favourably on random testing of Employees just on a whim. Testing can be viewed upon more favourably in safety critical industries, where being under the influence of such an intoxicant may have huge impact.
There is no statutory requirement for Employees to undergo testing in relation to being under the influence of intoxicants; similarly, there is no requirement for Employers to test Employees for intoxicants.
Employers may carry out drug and alcohol testing only where it has been provided for in either the contract of employment, the Employment Policies and Procedures such as the Employee Handbook, or with the Employee’s express consent. Even then, the testing must be proportionate and reasonable. Where the Employee is consenting to the testing, the Organisation must notify the Employee in advance of the testing occurring, the extent of the testing which is to be carried out, and potential implications should there be a positive result received.
Points to be considered before implementing intoxicant testing within the workplace:
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How often the tests will need to be conducted?
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Where will the tests take place?
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By whom will the tests be carried out by - tests should comply with the European Standard EWDTS and comply with the International Standard for Laboratories (ISO 17025).
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What tests will be used – hair, blood, urine, breathalyser?
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Positive tests – what are the implications of same?
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If an Employee discloses or it is identified through screening that they have a drug or alcohol dependency how will the company support it. If it is considered a disability under the Employment Equality Acts, consideration will need to be given to reasonable accommodation and this should be treated in the same way as staff with other health problems.
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The role of the supervisor and manager in implementing this policy.
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Data protection – how this information will be stored?
An Organisation should also consider the types of testing which they may wish to carry out within the workplace. There are three main types of testing that Organisations can carry out:
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Pre-Employment Testing
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Random Testing
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With-cause Testing
Subject to the contractual terms and/or policies outlined above, any Employee suspected of being under the influence of intoxicants or involved in a work-related accident may be subject to with-cause testing. This should be conducted in conjunction with an occupational medical advisor. This is to be applied in circumstances where any Employee appears to be under the influence of an intoxicant and therefore would be in breach of the policy within the Organisation.
The judgement as to whether with-cause testing needs to be applied can be based on a number of factors including the following; apparent disorientation, unsteadiness, slurring of words, smell of alcohol, admitted or observed taking of illegal or non-prescribed drugs or volumes of alcohol which might cause the legal limit for driving to be exceeded.
It is advisable that in all cases, prior to an Employee being requested to undergo with-cause testing procedures, that more than one person will have submitted an opinion as to the existence of circumstances or conditions sufficient to warrant testing. For example, a manager on duty at the time (or staff member) in addition to another manger on duty at this time.
Case Law
As noted above, testing is viewed more favourably in safety critical industries. In ADJ-00003564 - A Complainant v A Meat Processing Plant involved a worker with 3 years’ service in a meat processing plant who alleged that he was unfairly dismissed after failing a random intoxicant test.
On 22nd February 2016, the Employee failed a random intoxicant test with three times the allowed limits of cannabinoids in his system, and was subsequently dismissed. The Employee believed the real reason for his dismissal was due to the complaints he made to the Company in relation to occupational injuries he had suffered while working for the Company. The Employer argued that the Complainant had been dismissed following a thorough procedure, and also stated that the nature of the Employee’s work means he must use knives which require training and focus. The Adjudication Officer stated that the Employer conducted a drug test which it is allowed to do under its Company policy. The consequences of an Employee failing the test were well documented, an investigation followed and the Employee had the right to representation at all times and he choose not to internally appeal the dismissal decision.
The Employee’s case for unfair dismissal was determined to be not well founded and as a result the dismissal was upheld.
Another landmark case in the area of intoxicants in the workplace is UDD1710 - Irish Aviation Authority v Christopher Reddin. In this case, the Employee was employed as an Airport Traffic Controller from March 1992 until his dismissal in November 2015.
In July 2015, the Employee was asked to take a blood test on suspicion of attending work under the influence of alcohol. The test proved positive and the Employee was suspended from duty on full pay pending a full investigation and follow on a disciplinary hearing. As a result of the positive test, he was later summarily dismissed from this employment.
The Complainant alleged that his dismissal was unfair, unreasonable and disproportionate. He contended that his dismissal was heavily influenced by the fact he had not made a voluntary disclosure about his alcohol dependency problem and that the Employer should have had regard to the fact that since 2003 when the Employee was last treated for alcohol dependency, his alcohol problems had on the surface dissipated and therefore an alternative to dismissal such as referral to treatment would have been more benefit to him.
The Respondent had in place an agreed policy and protocol in relation to supporting the health and wellbeing of its Employees. Accordingly, the Respondent had on a number of occasions referred the Complainant to Occupational Health in order to establish the nature of his alcohol dependency and to update itself on the state of his health. At no time during these OH appointments did the Employee refer to his alcohol dependency, in fact the Employee was asked about his previous problems with alcohol dependency on those occasions and given an opportunity to have the matter addressed in line with the Company’s policy, however he consistently stated that it was under control.
As a result, the dismissal was deemed to be fair. The Labour Court also stated that it is “… of the view that generally speaking when dealing with an employee who has an alcohol dependency problem, employers should give such employees an opportunity to seek professional treatment before considering dismissal. However, each case must be judged on its merits. Factors such as risk to safety, the level of responsibility the employee has and contact with the public are taken into account when deciding whether or not the penalty of dismissal was within the range of reasonable responses an employer might take.”
Conclusion
It is clear that while in some circumstances it may be reasonable to dismiss an Employee who attends for work under the influence of alcohol and/or drugs, or who fails an intoxicants test – Employers still need to adhere to their workplace policies. In addition, each case should be assessed on its own particular set of facts to decide what sanction is appropriate in the circumstances. Factors such as risk to safety, the level of responsibility, is there a disability and/or if the Employee has contact with the public should be taken into account in deciding whether or not the penalty of dismissal is a reasonable and proportionate response in the situation.
If you require any assistance on intoxicants in the workplace then please contact the team at Adare Human Resource Management – info@adarehrm.ie / 01 5613594 to discuss how we can assist you.