How do you address matters where employee comes to work smelling of alcohol or fails a random drugs test?
Employers have a duty of care under the Health and Safety at Work etc Act 1974 to provide, as far as is reasonably practicable, a safe place of work and safe systems of work for their staff. If an employer knowingly allows a member of staff under the influence of alcohol or drugs into the workplace who then subsequently suffers an injury or puts other staff at risk of harm, the employer or individual directors or managers could be prosecuted.
Employment tribunal cases
Not every business requires a drug and alcohol policy but where safety is perceived as priority, such as in factories where heavy machinery are being operated or job roles involving driving or where public safety is critical; then having a clear drug and alcohol policy would help to address matters. Where such a policy makes references to disciplinary action and potential dismissals for breach of policy provisions, failure to explore fully the reasons why the employee came to work under the influence of alcohol / drugs could cause risks to the employer as the recent case of Ball v First Essex Buses Limited 2018 highlights.
The Claimant, Mr Ball, successfully claimed unfair dismissal at the Employment Tribunal despite failing a drugs test. Mr Ball was a bus driver who tested positive for cocaine. He was a 61-year-old diabetic who required blood prick tests every two hours to check his blood sugar levels.
As part of his defence, Mr Ball put forward a theory, amongst others, that the bank notes may have been contaminated with cocaine may have been the reason for him failing a drugs test. To prove his innocence, Mr Ball provided a hair follicle test which showed no traces of cocaine in his system. This test was ignored by the bus company as it had not been done by the providers of the drug test assessment. A subsequent internal appeal also failed.
In its judgement, the tribunal were critical of First Essex Buses (FEB) in the way they carried out the disciplinary process. Although, the company’s drug and alcohol policy had been silent on other methods of testing, they told Mr Ball that it was not within their policy to accept alternative tests. This was technically not correct, and it was deemed something a reasonable employer should have considered.
Given the circumstances, in addition to Mr Ball’s 21-year unblemished record, a reasonable employer should have re-tested the employee. The decision of the disciplinary chair that showed no flexibility, along with the belief that dismissing after a positive test was black and white, was critical to the finding of unfair dismissal.
Employment Tribunal found that FEB’s conduct was not that of a reasonable employer. Considering his current and future losses, the total compensation awarded to Mr Ball was just under £38,000.
Although this is only a tribunal decision and not binding on any other cases, it contains important reminders of the importance of carefully worded disciplinary and drug /alcohol policies, even if not contractually binding, as highlighted by this case.
Further, the case of McElroy v Cambridgeshire Community Services NHS Trust 2015 gives guidance on whether smelling of alcohol would be perceived as a matter of gross misconduct. Mr McElroy was a healthcare assistant for the NHS Trust. The Trust’s disciplinary policy stated that being unfit for duty through the effect of drinking alcohol was considered a gross misconduct offence.
When considering what a reasonable employer would have done in the circumstances, the Employment Tribunal found that simply attending work smelling of alcohol would not amount to gross misconduct in the absence of evidence of an adverse effect on the employee's ability to do their job (being unfit for duty). The Tribunal was also critical of the NHS’s disciplinary process in adding an additional charge of failing to attend occupational health, without making the employee aware that this would also lead to a disciplinary.
For those employers who have already implemented drugs and alcohol policies, the above cases should help in giving some guidance on such matters especially before coming to a decision on disciplinary action. In addition, careful consideration must be given to GDPR provisions and in-particular the use of your staffs’ sensitive personal data when processing the results.
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The contents of this article is intended for general information purposes only.
