Dealing with drug taking or sexual assault at after-work events

Georgina Calvert-Lee and Steve Melrose report on what employers can and should do when an employee is accused of misconduct outside of working hours

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With the ‘cocaine culture’ of parliament brought into the public eye last year, and sexual misconduct by MPs more recently, businesses must also buckle up and, if necessary, tighten their policies, educate senior management on procedures and cultivate a ‘celebrate sensibly’ culture to avoid the reputational and financial risks associated with illegal conduct outside of work hours. 

What if employees are accused of taking drugs at after-hours events?

The first question is whether you, as an employer, even have a right to intervene, where the event occurred after work hours and the line between private and professional life has become blurred. You do, where the conduct impacts the business, other staff or how the perpetrator does their job. You may be liable for the conduct too if it occurred during an event organised, paid for or sanctioned by the company. But even if the employer is not likely to be liable for the conduct, it will still have to consider carefully whether it would want to intervene anyway. Increasingly, businesses will want to intervene to protect their staff, uphold their values and minimise reputational damage.

In either situation, it will be easier for an employer to intervene if it has a clear policy in place stating company values and expected standards of conduct during and outside of work hours, and the consequences for staff who cross the line. This will preempt any argument that you are straying into private matters, and avoid the complication of trying to decide whether an employee has broken the law. You can simply apply a clear policy to the situation, and leave the criminal law to the police. 

Your out-of-work drugs policy would be justified because drug taking has a clear bearing on the business, tarnishing most companies’ reputations, putting employees at risk and sometimes raising serious regulatory questions.

A relaxed attitude to drug taking at after-hours work events may have significant repercussions for employee safety, especially if junior staff feel forced to emulate the behaviour of their managers. Employers should also be wary of employee bond-building programmes where excess alcohol consumption is likely. All of these raise the risk of physical injury, for which the company may be liable. 

While you aren’t under any strict legal obligations to investigate out-of-hours conduct, absent the lodging of a grievance, whatever steps you take must be fair and your approach must be consistent. If not, you may face an allegation of discrimination or unfair dismissal. To investigate the matter, it is often wise to engage an independent investigator who’s removed from the dynamics of the workplace and better able to judge the situation impartially.

Remember, you can revise your policy at any time. Even if, in the past, you have ignored employee drug taking, you can introduce a new policy to change this. Just make sure your employees are made aware of it, and that you handle concerns regarding addiction with sensitivity. While drug dependency isn’t protected under disability or equality laws, you still owe your staff a duty of care, which you may have breached if the company culture played a part in it, or which you may breach if you ignore it.

What about other misconduct?

Unfortunately, sexual assault and rape are other forms of unlawful conduct that can arise at out-of-hours work gatherings. Employers should take a proactive approach to prohibiting such misconduct via policies too. 

Post #MeToo, an employer faced with a grievance for sexual misconduct has no excuse for taking a relaxed approach. Since there are likely to be two or more people involved, it is even more incumbent on employers to provide a fair process for investigating and handling the grievance, so that the rights of each party are respected in the investigation and outcomes are not predetermined.  

In some regulated industries, businesses will also need to be alive to the regulatory implications of any unlawful conduct by their employees.

What happens if the police become involved?

Although employers have to be careful not to prejudice a police investigation, and should not interview witnesses before the police take their evidence, your hands are not completely tied just because the police are involved. Your investigation is not about breaking the law, it’s about breaching company policy, and so can potentially proceed independent of ongoing police inquiries. Indeed, sometimes you have to proceed to keep your workplace safe.

Why policies and culture go hand in hand 

Employees are now more alive to the issues around drug taking, sexual harassment and other misconduct, so it’s vital that you create a culture that promotes safe celebrations. 

Having an air-tight policy and consistent procedures are important, but what’s equally key is to remind your employees that, while work events, even offsite and out of hours, are a time to let your hair down, they aren’t the place to cross boundaries and engage in illegal conduct. Remember, you set the tone for what’s tolerated. 

Georgina Calvert-Lee is a senior consultant and Steve Melrose a senior investigations and compliance lawyer at Bellevue Law