businessman lying on sofa

When it comes to policy and regulation, it is fair to say most employers do their best to reflect within their own strategy what is happening in society at large. How much the professional world actually knows about certain recreational trends, and how these might affect their business, is perhaps more debatable.

It is true that the modern world presents the individual with so many pressures it is understandably difficult as an employer to take all of these into account when considering the holistic responsibilities one holds towards its employees.

Research conducted in 2013 by Synergy Health Plc with 200 businesses here in Wales, for example, showed only 17% of those questioned had ever suspected an employee of having drugs in their system at work, and only 11% of cases were dismissed from work as a result.

And yet the rise in popularity of so-called ‘legal highs’, for example,  undoubtedly makes substance misuse a significant social problem, and the often random and unknown effects they can have on the user a potential threat to the workplace.

Any organisation should not only want a productive workplace, but is obliged to provide a safe and healthy working environment; not just for staff but for customers alike.

This obligation includes ensuring staff who arrive at work are fit to carry out their roles and are able to perform their jobs safely,  particularly in safety critical roles,  without any interference from drugs (legal and illegal) or alcohol. But if the potential effects of that substance are still largely unknown then how does a business go about protecting itself and its employees against them at all?

In the majority of cases it seems the intention is certainly there, but the systems required to enforce such a stance are not. The fact 67% of businesses within the same survey said they would be sympathetic to employees with a drug problem, but a slightly higher proportion (70%) said they would never consider staging a random drugs test, bears testament to this.

And yet not only can employees’ alcohol and drug usage have major adverse impacts on a business, but an employee suffering negative effects of either, can be a hazard to others (employees and other third parties) through lapses in judgments, reactions and increased health and safety risks, potentially leading to major reputation damage and loss to the overall business.

Effective implementation of a Drugs and Alcohol Policy will help HR professionals to ensure that their organisation complies with its legal duty to safeguard the health and safety of its employees and to any third parties.

Best practice indicates that a good policy is supportive, not punitive, to ensure a safer working environment.  Whilst the aim of such a policy is to ensure such problems don’t impact on the workplace, there is an added benefit in the support that employers can give to employees found to be suffering from a dependency on drugs or alcohol.

This, in turn can facilitate enhanced productivity and performance of not just the individual, but the organisation as a whole.  This can extend to an employer offering an Employee Assistance Programme or counselling support service which can dovetail with their Drug and Alcohol Policy and provide support to a vulnerable employee.

And yet, research conducted across Wales alone in 2013 by global health specialist Synergy Health Plc showed a significant majority (around a fifth) of businesses surveyed were still found to be without any appropriate policies in place at all.

It is also essential that HR is supported by senior management to ensure buy-in at top level of such a policy. Education, not just of managers, but of all staff is also a vital ingredient of this buy-in process. We would always advise clients to secure effective training, not just relating to the policy framework and organisation’s legal responsibilities, , but also on the more practical effects of drugs too. This could include improving knowledge more generally to include knowing what different drugs look like, what they are called, the potential effects of those drugs and the prevalence of type across the geographical areas within which that organisation works.

Previous cases, such as Liberty Living Plc v Reid, have highlighted the crucial importance of ensuring that a Drug and Alcohol Policy is properly implemented, particularly when then policy includes the ability to drug or alcohol test employees. It is worth bearing in mind that dismissals have been deemed as unfair where they have been based on a policy of which the employee was unaware, and which they found confusing.

It is also essential for employers, when dealing with disciplinary cases where drink and/or drugs use form part of that case, to examine very carefully the particular circumstances and determine whether the alcohol or drugs use has taken place during work time or outside working hours and whether that conduct impacts on the employee’s ability to do their job which can include whether there has been any adverse impact on the employer’s business or reputation.

Additionally, if a decision is taken to include a drugs and alcohol testing programme, it is crucial that the organisation links up with a testing company that has UKAS Accreditation. This will give confidence that any collection, testing and interpretation of test results are legally defensible.

It is vital that organisations equip themselves with the necessary tools they need to protect themselves, and their employees against the potential legal consequences posed by an ever-evolving set of social trends within the modern world. This month (April) I will be focusing on the legal implications of not having an effective and properly implemented Drug and Alcohol Policy – implications that can include unfair dismissal, and breach of the Human Rights Act and /or Data Protection Act 1998 – in partnership with a range of experts operating within the field of substance misuse.

This is the second year I have been involved in the Drugs at Work conference, which is being run by Synergy Health in 2014 both in London and Manchester, and it’s always amazing to hear stories from major players in all sectors on their own experiences of drugs and alcohol within the work place, and how they work to implement their own policies too.

Rhian Brace, Partner at Geldards LLP and speaker at the 2014 Drugs at Work conference