DRUGS IN THE WORKPLACE: HOW BIG IS THE PROBLEM?
Levels of drug use across the population in the U.K are now so high that it is inevitable that drugs will effect any workplace, no matter how large or small. A range of organisations have carried out research into the size of the problem for employers: - A study in the Health and Safety Monitor estimated that drug use costs industry in the UK £800 million per year.
- A survey of 1800 personnel professionals by the Institute of Personnel and Development found that 18% had reported drug-taking incidents in their workplace.
- Between 10% - 15% of the workplace drug tests carried out by City Medical Services in the UK are positive (cannabis is the most common drug detected.)
- A paper in the Journal of Applied Psychology showed that employees who use drugs have approximately 60% higher rates of absenteeism and a 47% higher rate of involuntary termination of employment than other workers.
WHAT ARE THE SIGNS OF DRUG USE IN THE WORKPLACE?
Drug use is a very complex issue. It is important to remember that all drugs are different, and affect the user in different ways. They can alter the way a person thinks, perceives and feels, and this can lead to either impaired judgement or concentration. Drug misuse can also bring about the neglect of general health and well being. This may adversely influence performance at work, even when the misuse takes place outside the workplace. It is important to remember that some of the signs of drug use listed below could be caused by other factors, such as mental illness, stress, or relationship breakdown. Signs of drug use might include: - - increased short term sickness and absenteeism
- - a deterioration in relationships with colleagues, customers or management
- - altered and slow reactions
- - unusual irritability or aggression
- - poor quality of work
- - low productivity
- - increased workload for colleagues
- - increased levels of accidents and mistakes
- - increases in petty theft
Careful record keeping in relation to theft, accidents, and absenteeism in your workplace might reveal recurring patterns in a particular section of the workforce. EMPLOYERS, DRUGS AND THE LAW
Employers have a number of statutory duties and responsibilities towards their employees and the public. Clearly, these duties have to be taken very seriously. 1) MISUSE OF DRUGS ACT 1971
The principal legislation in the UK for controlling the misuse of drugs ids the Misuse of Drugs Act 1971. Nearly all drugs with misuse and/or dependence liability are covered by it. The Act makes the production, supply and possession of these controlled drugs unlawful except in certain specified circumstances (for example, when prescribed by a doctor.) If you knowingly permit the production or supply of any controlled drugs, the smoking of cannabis or certain other activities to take place on your premises you could be committing an offence. The Act lists the drugs that are subject to control and classifies them in three categories according to their relative harmfulness when misused. Class A
This includes ecstasy, cocaine, heroin, LSD, mescaline, methadone, morphine, opium and injectable forms of Class B drugs. Class B
This includes oral preparations of amphetamines, barbiturates, cannabis, codeine and methaqualone (Mandrax). Class C
This includes most benzodiazapines (e.g. Temazepam, Valium), other less harmful drugs of the amphetamine group, and anabolic steroids. The penalties for offences involving controlled drugs depend on the classification of the drug. Penalties for misuse of Class A drugs are more severe than those for Class B drugs which in turn are more severe than the penalties for Class C drugs. The Act also distinguishes, in terms of the penalties that might be imposed, between the offences of possession and supplying, with the latter attracting higher penalties. It is possible that in certain circumstances charges may be brought against an employer or an employee under either this Act or the Health and Safety at Work Act or both. It would be up to the courts to decide on the circumstances in each case. There is no general duty under the Act to inform the police about any breaches of the Act that you may discover. Under Section 8 of the Act it is an offence for a manager/ employer to knowingly permit the use, production or supply of any controlled drugs taking place on their premises. It is also an offence to ignore such occurrences. 2) The Transport and Works Act 1992
The fact that the driver had smoked cannabis was sited as a factor in the Cannon Street rail crash in 1991. The 1992 Transport and Works Act makes it an offence to knowingly allow certain workers to work on railways, tramways, and other transport systems when unfit through drugs or drink. The employer may have a defence if they can show that they have carried out all due diligence in trying to prevent such an offence. Clearly therefore an effective drugs policy which has been properly implemented may be helpful in establishing such a defence. 3) The Road Traffic Act 1988
The Act states that any person who, when driving or attempting to drive a motor vehicle on a road or other public place, is unfit to drive through drugs or drink shall be guilty of an offence. An offence is committed if a person unfit through drugs or drink is in charge of a motor vehicle in the same circumstances. 4) Health and Safety at Work Act 1974
Employers have a general duty under this Act to ensure so far as reasonably possible the health, safety and welfare at work of all employees. Breach of this carries a maximum fine and summary conviction of £20,000.00. In addition, an employer has a common law duty to ensure the health and safety of employees, which is implied into every contract of employment. The duty is to take reasonable care so as to avoid injuries, diseases and death occurring at work and to :- - a) Provide a safe place of work
- b) Provide and maintain safe appliances and equipment
- c) Provide and maintain a safe system for doing work
- d) Provide a competent and safety conscience personnel
These duties are extremely wide ranging and can clearly cover a situation where an employee is misusing drugs since there are clear risks to fellow employees in such circumstances. A breach of these duties could lead to employees or third parties bringing claims for damages if injured as a result. 5) Management of Health and Safety at Work Regulations 1992 (as amended)
The regulations impose a duty on all employers to carry out a formal assessment of risks so as to identify any protective measures necessary. Where there are five or more employees this assessment must be in writing. In addition, there must be arrangements for the effective planning, control, monitoring and review of preventative and protective measures required. Again, these regulations are widely drawn and may include an employee who is under the influence of drugs or alcohol at work since this could be seen as a risk to other employee's health and safety. If appropriate steps are not taken to deal with the risk for example implementation of an effective drugs policy an offence could be committed. 6) Unfair Dismissals
As with all unfair dismissal claims the employer must establish:- - - a fair reason to dismiss, i.e. conduct, capability, redundancy, etc.
- - follow a fair and proper procedure and act reasonably in dismissing the employee.
The ACAS handbook, Discipline at Work suggests that employees should introduce measures to help employees suffering from drug abuse or alcohol problems and encourage them to seek help and treatment. Employment Tribunals increasingly treat such issues as a serious illness rather than as a conduct issue and often have a large degree of sympathy for employees. Employers would therefore be best advised to follow a procedure for long term ill health including consultation, warning and the obtaining of medical evidence, etc. Example 1: Strathclyde Regional Council v Syme
A Janitor was dismissed for being drunk at work. The dismissal was held to be unfair because it should not have been treated as a disciplinary but as a medical issue. Example 2: Angus Council v Edgley
In a similar case to the one above, the employee concerned had been disciplined on numerous occasions for a variety of serious conduct matters. There was some evidence that some of the incidents may have been drink related. At the disciplinary hearing, a GP's report was provided confirming that the employee had a drinking problem. The Council treated the incident as a "one off" and declined to follow the Councils drug and alcohol policy. The employee was dismissed for misconduct. This was held to be unfair. There was evidence of a drinking problem and the employer should therefore have obtained medical evidence and applied their own alcohol and drugs policy. If alcoholism results in an offence of gross misconduct this can result in a fair dismissal for misconduct. Also Employment Tribunals will recognise that the employer may be entitled to say, "enough is enough" if problems continue for a long time or if an employee fails to undergo treatment. Example: Evans v Bass North
In this case it was considered fair to dismiss an employee with a severe drink problem who threatened his Manager after breaking a ban on drinking. The employer had previously taken a sympathetic view of the employee's problems over many years. Drug related dismissals are currently more likely to be treated as a conduct issue. This may be due to the fact that most incidents involve cannabis, which is not generally considered to be 'addictive'. The employer who has disciplinary rules regarding drug taking at work are in a much better position when justifying dismissals. The effect of the rule is to act as a substitute warning as long as the rule has been properly communicated and the effect of the consequences made clear. Example: Claypotts Construction Ltd v Callum
In this case it was considered unfair to dismiss an employee for overstaying lunch in the pub for one hour. The contract stated that such conduct should result in a warning, but more recently employees had been told that this would not be tolerated. The Employment Tribunal considered that the alteration to the rules had not been properly communicated to the employees. It is often the case that where the employee works in a hazardous environment or where there are serious safety risks the Employment Tribunal will take a much harder line. Example: Southampton Airport Ltd v Booth
It was fair to dismiss an Air Traffic Controller for smoking cannabis in his spare time, as the employers could not be seen to be taking any risks. This was not withstanding that there was no evidence that he was not fully competent or capable. Example: British Railways Board v Welch
The employee, a Train Driver of 25 years standing was fairly dismissed for drinking a "shandy" during a break. The employer has a duty to provide a safe service and therefore were justified in strictly enforcing their policy. Off Duty Conduct
As with all off duty conduct the dismissal will only be fair if the conduct affects the employment relationship in some way. Usually the employer will claim that the action has damaged the reputation of the employee or undermined the trust and confidence. For example, a dismissal of an employee who was 'legless' on a building site where he worked was fairly dismissed even though he was off duty. The Tribunal felt that the employer acted reasonably in concluding that the employee's presence would undermine the confidence of the site agents. If the employee is in a position of trust and has contact with children or young people then this may be an important factor. A teacher who grew cannabis was fairly dismissed, even though he did not use the drug himself, as he had shown total disregard for the law. However, a senior teacher who primarily instructed other teachers was unfairly dismissed in similar circumstances. Office or works parties often provide fruitful grounds for unfair dismissal claims. The following example illustrates the Tribunals treatment of such claims: Example: Whitbread Beer Company v Williams and Ors.
A number of employees were involved in a drunken brawl following a seminar on improving behavioural skills. The Employment Tribunal considered the dismissals were unfair as the incident was over in minutes and was not witnessed by others. In addition, they considered that it was a relevant factor that the employers provided a free bar. The Court of Appeal upheld the Tribunal's decision. Example: Focus DIY Ltd v Nicholson
In this case the employee was dismissed as a result of a complaint being raised that she has smoked cannabis at a staff party. The Tribunal held the dismissal to be unfair as the employer had not carried out sufficient investigation, and that although the employer took a serious view of the offence this was not a view shared by the younger generation. The Court of Appeal took a much harder line. They considered that it was reasonable for the employer to take the view that it did. It was relevant that the employee was in a supervisory position and therefore the incident would impact on her ability to manage her staff. Loss of Driving License
Loss of a driving license may be a potentially fair reason to dismiss if the employee is required to drive as part of their duties. It is far easier to establish a fair reason in such cases where the employer has stated in the contract that driving is an essential part of the job and that employment is conditional on the employee having a license. The employer must still consider whether the employee can reasonably carry out hid duties in some way, for example by use of a driver or public transport | 
