1. Guidance notes
General
In relation to alcohol policies, employers should determine for themselves their level of ‘tolerance’ of alcohol. The Health and Safety Executive recommends that employers ask four questions before setting rules on alcohol:
Am I happy for my employees to drink alcohol:
· during working hours?
· during lunch and other breaks?
· on special occasions?
· when entertaining clients?
Do I expect the same from employees working in safety-
sensitive jobs when it comes to not drinking alcohol as I do from employees working in non-safety-sensitive jobs or management positions?
How would I deal with an employee who finds it difficult to control his or her drinking and whose work is suffering as a result?
How would I deal with an employee who turns up for work drunk or flouts known restrictions on drinking alcohol?
The specimen policy does not reflect a ‘zero tolerance’ approach. For example, it states, in Appendix 1, that employees should ‘avoid consuming alcohol during meal breaks’. Employers may wish instead to have a clear rule in their policy that employees should not consume alcohol in meal breaks or to have such a rule for employees in safety sensitive roles.
Testing
The specimen policy contains optional clauses providing for testing for alcohol and drugs, both for cause (that is, where the employer already has evidence which might indicate that the employee is under the influence of drugs or alcohol) and random. Random testing is appropriate only in relation to safety-critical positions or where the employer has a very clear ‘zero tolerance’ policy. Testing will provide the employer with sensitive data about those tested and employers should bear in mind their obligations under the Data Protection Act 1998. The Information Commissioner has issued a section on information about workers’ health as part of the Employment Practices Data Protection Code. This section contains recommendations in respect of drugs and alcohol testing and emphasises that the intrusive nature of testing requires employers to weigh up the benefits to them of testing against the adverse impact on the subjects. In general, testing is unlikely to be justified unless it is undertaken for reasons of health and safety of workers and others.
Employers may wish to provide for compulsory testing (either for cause or random):
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where an employee is required to make safety-critical decisions;
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where the employer is involved in railways and covered by the Transport and Works Act 1992;
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where the employer is required to do so by a customer, and the customer’s requirement is justified
Employers should seek the advice of the company medical adviser or occupational health department before putting in place a testing regime.
Even where there is a clear rationale for testing, it is strongly recommended that employees should be consulted on the reasons for the introduction of testing and, so far as possible, that consent to the principle be secured. Such consent is best demonstrated in a signed document.
Where testing is undertaken, employees should be fully aware of the fact that testing is taking place and the reasons for this. If testing is undertaken on a random basis, it should be genuinely random and not used to test particular employees under suspicion.
It should be noted that an employer is entitled to take disciplinary action against an employee based on reasonable belief that the employee is under the influence of alcohol or drugs. The employer may well have sufficient evidence (for example, from observation) to find a reasonable belief without the need to resort to testing. Testing would, however, provide corroborative evidence. However, employers should be aware that there may be ill health issues for an employee who appears to be under the influence of drugs or alcohol at work and this should be borne in mind during an investigation.
Employers should note that there is no general legal right to test employees. Furthermore, employees cannot be forced to take a test on any particular occasion. It is therefore advisable – if employers wish to test – to state clearly, preferably in the disciplinary rules as well as in the alcohol and drugs policy, that refusal to take a test is a disciplinary offence which may lead to dismissal. The employer should also clearly specify the consequence of a positive test result.
The results of any drug or alcohol tests will be sensitive data under the Data Protection Act 1998. As such, employers must have the explicit consent of the individual not only to carry out the test, but for the employer to be informed of the results and use the results to make decisions which might affect that person’s employment. Employers should not hold results for longer than is necessary and should only retain those parts of any results that are relevant to the individual’s employment. They should be particularly careful to ensure that the results are kept confidential.
It should be remembered that the purpose of testing is to ensure the employee is competent and safe to perform his or her task. It is not to control off-duty behaviour that has no impact on his or her performance at work.
Care should be taken to avoid making stereotyped assumptions and to avoid discriminating, for example, between men and women or different racial groups when testing employees for drugs or alcohol.
Employers may wish, where for safety reasons they establish a zero or very low threshold for alcohol, to offer employees the facility of volunteering for testing where they are uncertain of their condition without fear that failure to pass the test will lead (save in the case of frequent or abusive use of the facility) to disciplinary sanction.
The specimen policy refers, in the case of alcohol, to breath testing. Employers should be aware that breath testing is potentially less reliable than blood testing. Employers may wish to provide employees who challenge the accuracy of a breath test with the facility to request a blood or urine test. This facility is strongly recommended where the employee was randomly selected for testing.
Drug testing kits are available on the market, which provide some evidence of drug use. Again, where the employer has some evidence that the employee is or may be under the influence of drugs, such tests can provide corroborative evidence. Where random testing is employed, it is strongly recommended that any positive test be confirmed by laboratory analysis.
It is in any event recommended that any testing only be conducted by the employer’s occupational health department or by a qualified independent laboratory or occupational health service.
SPECIMEN ALCOHOL AND DRUG POLICY
1. Introduction
This policy has been drawn up after consultation with employee/trade union representatives [and the Company’s medical advisers/occupational health department]. It has the full support of the Company’s senior management. Its operation and effectiveness will be kept under regular review. The policy is intended as guidance for management and employees. It does not confer any contractual rights on individuals.
2. The purpose of the policy
There is a clear link between misuse of alcohol and drugs and reduced safety and efficiency. The purpose of this policy, therefore, is;
3. Application
The Company’s policy applies to all its employees and to everyone working at its premises, including any contractors.
- to ensure that employees’ use of drugs or alcohol does not affect the health and safety of the individuals themselves, their fellow workers or others with whom they come into contact in the course of their work
- to ensure that employees’ use of drugs or alcohol does not affect the efficient and effective operation of the Company’s business
- to set out the Company’s rules on drugs, alcohol and substance abuse
- to provide a procedure whereby employees who have a problem of drug or alcohol misuse or substance abuse can seek and be offered help in confidence
- to provide guidance on the effects of drugs and alcohol and the symptoms of drug and alcohol misuse and substance abuse.
4. The Company’s rules on alcohol and drugs at work
The Company’s policy is that the working environment should be free from the influence of drugs or alcohol. This will help to ensure the health and safety of its employees and others with whom they come into contact, to maintain the efficient and effective operation of the business, and to ensure our customers receive from us the service [quality] they require. For those reasons, the following rules will be strictly enforced.
No employee or contractor shall;
- report or try to report for work when unfit* due to alcohol or drugs (whether illegal or not) or to substance abuse
- be in possession of alcohol or illegal drugs** in the workplace
- consume alcohol or illegal drugs or abuse any substance whilst at work.
[Optional: Subject to what follows, employees may consume alcohol at Company functions where such consumption has been authorised by senior management. Such functions will [Optional: where possible] be arranged at times so that employees do not have to return to work having recently consumed alcohol. This exception to the normal rule does not excuse drinking to excess or so as to create a safety risk.]
*Whether an employee is fit for work is a matter for the reasonable opinion of management.
**Illegal drugs include but are not limited to heroin, cannabis/marijuana, cocaine, ecstasy and amphetamines.
Contravention of these rules is a very serious matter and the Company will take disciplinary action, which may well include dismissal, in the event of infringement. See below. [Optional: In addition, possession of or dealing in illegal drugs on Company premises will, without exception, be reported to the Police.]
5. Disciplinary action
Where an employee contravenes the Company’s rules stated above, that contravention will be dealt with under the Company’s disciplinary procedure.
However, the Company’s disciplinary procedure may be suspended for a reasonable period pending investigation of whether the employee has a medical problem amenable to treatment and, if so, for that treatment to be undertaken.
Whether the disciplinary procedure is suspended will depend on;
- the nature of the employee’s alleged offence
- the evidence that the employee has a health-related problem;
- the employee’s willingness to be treated.
Employees who decline to undergo appropriate treatment, or who discontinue treatment before its satisfactory completion, will be subject to the normal disciplinary procedure.
6. Help available
The Company will endeavour to ensure that advice and specialist help are made available to any employees who feel they have a problem with alcohol or drug misuse. Any employee who seeks the assistance of the Company in finding treatment for a drugs or alcohol problem has the Company’s complete assurance of confidentiality.
Early identification and treatment is essential if problems for the employee and for the Company are to be avoided. Employees who feel they have a problem are encouraged to come forward and seek assistance. Employees who wish to seek help and advice should contact the [Occupational Health department/ the Personnel department/ their immediate manager/employee counsellor etc] who will arrange for the employee to have a counselling meeting at which the options available to the employee will be explained and a course of treatment or rehabilitation agreed.
During any period of absence from work for agreed treatment, the Company’s normal sick pay arrangements will apply and absence for treatment will be treated as normal sickness.
In the event that an agreed or recommended course of treatment is not followed by an employee or is ineffective, lapses in the employee’s performance, conduct or attendance will be dealt with in accordance with the Company’s normal disciplinary or sickness absence procedures as appropriate. This includes any matter arising prior to the disciplinary procedure being suspended.
Employees who are concerned that a colleague is exhibiting symptoms of an alcohol or drug-related problem should notify their manager or supervisor [or the Personnel department]. Their comments will be handled in a confidential manner. Employees making false accusations in bad faith will be subject to appropriate disciplinary action, which could include dismissal.
7. Action by managers and supervisors
Managers and supervisors should keep accurate records of instances of poor performance or other problems which may be related to a drugs or alcohol problem. Some of the features which may be associated with problem drinking or substance misuse are listed in Appendix 2 to this Policy.
Where a manager or supervisor suspects an employee may have a problem with alcohol or drugs that is affecting his or her work performance, as opposed to suspecting the employee of being guilty of a single instance of drug or alcohol related misconduct (which will be dealt with under the disciplinary procedure), he or she will initially hold an informal counselling discussion with the employee to ascertain whether their poor performance is health-related and to offer the Company’s assistance. If the employee does not accept this offer of assistance, he or she should be advised to discuss the matter with a colleague, their trade union representative or a family member. If the employee then fails to accept the offer of assistance, his or her performance, conduct or attendance will be dealt with in accordance with the normal Company disciplinary or sickness absence procedure as appropriate. If the employee accepts the offer, a counselling meeting will be arranged as in 6 above.
8. Testing for alcohol
For cause
Where management has reason to believe that an employee is under the influence of alcohol at work, the employee will be suspended immediately from duty (with pay) and instructed to wait in a private area. His or her manager will explain to the employee the nature of the test for alcohol and the possible consequences for the employee’s employment if the test is positive. The employee will be asked to sign a“Breathalyser Test Consent Form”. The employee’s manager will arrange for a request for a Breathalyser test and the Consent Form to be sent immediately to a specialist occupational health agency appointed by the Company or taken immediately to the Company’s occupational health department. A qualified person from the external agency or member of that department will administer the breath test as soon as practicable. Refusal to sign a “Breathalyser Test Consent Form” or to supply a sample of breath for testing constitutes a disciplinary offence, which may lead to dismissal.
If the test is positive (i.e. over [35] micrograms per 100ml breath alcohol concentration), the test will be repeated. If the second test is likewise positive, the employee will be sent home on pay pending the institution of disciplinary proceedings, which may lead to dismissal.
If the test result shows a breath alcohol content below [35] micrograms per 100ml but above zero, the employee will not be permitted to resume any work which the Company considers safety sensitive or otherwise likely to be affected by his or her consumption of alcohol but will either be deployed to other work or sent home. The employee will be paid his or her normal basic rate for that day. Depending on the circumstances, action may be initiated under the disciplinary procedure.
Random
This procedure will be applied to employees in safety-critical posts. Employees whose post is safety-critical have been informed in writing. At intervals to be determined by the Company, [5/10] per cent of employees in safety-critical posts will be selected randomly [by computer]. These employees will be notified at the start of their shift/the working day that they are to be tested and will be asked to sign a “Breathalyser Test Consent Form”. A qualified person from a specialist occupational health agency appointed by the Company/Member of the Occupational Health Department will administer the breath test as soon as practicable. Refusal to be tested without good cause or to sign a “Breathalyser Test Consent Form” constitutes a disciplinary offence, which may lead to dismissal. If the breath test is positive, the employee will be asked to pass a sample of urine for a confirmatory test to be carried out by a specialist occupational health agency appointed by the Company. Pending the result of this test, the employee will be suspended on full pay. If the confirmatory test is positive, the employee will be subject to disciplinary proceedings, which may lead to dismissal.
9. Testing for Drugs
For cause
Where management has reason to believe that an employee is under the influence or unfit because of drugs at work, the employee will be suspended immediately from duty (with pay) and required to wait in a private area. His or her manager will explain to the employee the nature of the drugs test and the possible consequences for the employee’s employment if the test is positive. The employee will be asked to sign a “Drugs Test Consent Form”. A qualified person from a specialist occupational health agency appointed by the Company or member of the occupational health department will carry out the tests as soon as practicable. The employee will be required to pass a sample of urine for the test. Refusal to sign a “Drugs Test Consent Form” or to pass a sample of urine for testing constitutes a disciplinary offence, which may lead to dismissal.
Whilst the test results are awaited, the employee will be suspended on full pay. If the test is positive for any illegal drug, the test will be repeated. If the second test is likewise positive, disciplinary proceedings will be initiated, which may lead to dismissal.
Random
This procedure will be applied to employees in safety-critical posts. Employees whose post is safety-critical have been informed in writing. At intervals to be determined by the Company, [5/10] per cent of employees in safety-critical posts will be selected randomly by computer. These employees will be notified at the start of their shift/the working day that they are to be tested and will be asked to sign a “Drugs Test Consent Form”. A qualified person from a specialist occupational health agency appointed by the Company/member of the Occupational Health Department will carry out the tests as soon as practicable. The employee will be required to pass a sample of urine for the test. Refusal to sign a “Drugs Test Consent Form” or to pass a sample of urine for testing constitutes a disciplinary offence, which may lead to dismissal.
Whilst the test results are awaited, the employee will return to normal duty. If the test is positive for any illegal drug, the test will be repeated. If the second test is likewise positive, disciplinary proceedings will be initiated, which may lead to dismissal.
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On behalf of Company Date
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Employees Representative Date