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How can I support an employee if they have a substance abuse problem?

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Substance abuse remains a sensitive topic for many people despite the fact that it affects many lives across the UK. For instance, in 2017/2018 the NHS estimated that approximately 586,000 adults in England had an alcohol dependency. Substance abuse poses a serious risk to workplace health and safety and productivity, yet some employers may be reluctant to discuss substance abuse with their employees. They may feel that substance abuse is a personal problem that the employee must deal with on their own, or view it solely as a disciplinary matter. Our Employment Law team today discusses your legal responsibilities regarding substance abuse in the workplace, outlining how you can support an employee who is suffering from a substance abuse problem.

Employer legal obligations regarding substance abuse

Under the Health and Safety at Work Act 1974, you have an obligation to look after the health and safety of all your employees and the public. This includes taking all reasonable steps to ensure that employees do not pose a risk to themselves or others due to being under the influence of drugs or alcohol.

You should also be aware of obligations that may arise under the Equality Act 2010. A substance abuse problem itself is not a disability, and an employee will not be protected from discrimination because of an alcohol or drug dependency alone. However, substance abuse may be a symptom of an underlying mental illness such as depression, which may qualify as disability. If that is the case, you will need to try and make reasonable adjustments for the employee and they will have enhanced protections from unfair dismissal.

Substance Misuse policy

A substance misuse policy can assure staff that you care about their wellbeing and that they will be treated fairly if they disclose that they have a substance abuse problem. A policy also provides guidance to managers on how to handle problems with substance abuse in the workplace if they occur.

The policy should outline:

  • its purpose;
  • the dangers substance abuse poses to employees and the public;
  • any help that you will offer to an employee with a substance abuse problem;
  • what employees should do if they suspect a colleague is under the influence of drugs or alcohol at work;
  • whether sick leave will be provided for a period of treatment;
  • potential disciplinary consequences;
  • an assurance that any disclosures will be treated with confidentiality.

Your policy should also be clear on your stance on alcohol at work. Some employers may allow alcohol to be consumed at work events, such as a team lunch, whereas others may want to enforce a zero-tolerance policy. You will need to decide which approach is appropriate for your business and should clearly state this in your policy.

How to proceed if an employee has a substance abuse problem

If you are made aware that an employee is suffering from a substance abuse problem, you have a duty to take all reasonable steps to protect their health and safety and the health and safety of their coworkers and the public. Promptly conduct a risk assessment for their role and the potential effects of substance abuse. You may have to adjust their duties or temporarily move them to another position.

Next, you may want to sit down with the employee and discuss the problem. It is possible that their substance abuse is part of a broader workplace stress problem. You should review the employee’s workload to ensure it is not more than they can reasonably handle. Having an honest discussion with the employee will help you decide what course of action to take next, including whether you need to provide reasonable adjustments.   

While in some cases disciplinary action and dismissal may be appropriate, you may find it beneficial to treat the substance abuse problem as a health issue rather than a disciplinary one. Possible courses of action include:

  • Encouraging the employee to seek help from their GP or a drug and alcohol agency;
  • Referring the employee to Occupational Health;
  • Contributing towards the cost of counselling;
  • Treating time off to attend treatment as sick leave.  

It is also possible to provide support to help the employee overcome their substance abuse problem while still addressing any consequential behaviour under your disciplinary procedure. For example, if their substance abuse caused them to take an unauthorised absence, you may refer them to occupational health as well as issue them with a final written warning. Another strategy some employers use is to suspend any disciplinary proceedings against the employee which relate to substance abuse if the employee agrees to undergo treatment. The disciplinary proceedings can then be resumed if the substance abuse continues to negatively affect the employee’s behaviour at work.

Whatever action you decide to take, the health and safety of the employee, other staff members, and the public should always be at the front of your mind.

Substance abuse is a sensitive topic and can raise a lot of complex issues for employers.  For advice on how you can support an employee with a substance abuse problem, or for help developing a substance misuse policy contact our Employment Law team on 023 8071 7717 or email employment@warnergoodman.co.uk.

To receive regular Employment Law updates from the team regarding recent tribunal cases and legislation updates, you can subscribe to our weekly Employment Law Newsletter by completing our subscription form or emailing us at events@warnergoodman.co.uk

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.