Almost a year of living with Covid restrictions and three national lockdowns have tested people to their limits. Healthcare professionals are reporting a ‘tsunami’ of mental health issues and, for some, occasional drinking or use of recreational or prescriptive drugs has morphed into dependency.
Organisations should be prepared, during or post lockdown, for a worker to disclose that they are struggling with their mental health or an addiction. This could include being under the influence of or using alcohol or illegal or prescription drugs during work time, or having a suspicion that an employee’s use of such is affecting their work.
Most employers recognise the need to maintain regular contact with staff while we continue to work remotely. This includes via team Zoom meetings and line managers and HR checking in one to one with those in more need of support. Details of any confidential employee assistance programme or mental health first aiders should be widely circulated. Referrals should also be made by HR to occupational health in line with company policy where necessary.
In the event of drug or alcohol misuse specifically, any further action will hinge on whether the person’s use of drugs or alcohol is recreational or a dependency, and whether the individual alerts you to the problem. If a worker has an addiction to alcohol or illegal drugs, this could have significant effects beyond their control, both physically and mentally. In such cases, the advice normally would be to treat the matter as a capability issue.
If the individual has disclosed an addiction, the focus should be one of support and encouragement for the employee to seek help and treatment. This may involve a referral to their GP, occupational health or a specialist counsellor, and granting the individual leave (paid or unpaid) to undergo any treatment. Subject to the worker having been professionally assessed as capable of resuming their duties, their wellbeing, progress and ability to perform their role can then be monitored. If, however, concerns persist, a capability (performance management) process may be warranted that might ultimately lead to their dismissal.
If an individual has not declared any addiction, but is very likely misusing drugs or alcohol and that is impacting their performance or behaviour, the employer should proceed with extreme caution and not raise it directly with the individual. Here, the safest and most advisable option will often be to default to a capability or disciplinary procedure, focusing on the performance/conduct issues at play, avoiding reference to the suspicion of underlying drug/alcohol use. Where the issue is one of misconduct, a formal disciplinary procedure (conducted remotely if necessary) incorporating a reasonable investigation should always be followed before any outcome is decided.
When faced with an employee with an addiction, it is important to consider whether a person’s (suspected) use of drugs or alcohol could amount to a disability under the Equality Act 2010. An addiction to or dependency on “alcohol, nicotine or any other substance” does not in itself constitute a disability – unless the addiction has been triggered by prescription drugs or other medical treatment. Impairments brought on by addiction, such as depression or nerve damage caused by alcoholism, could also be classed as a qualifying disability. The need to consider reasonable adjustments, as well as the risk of the individual bringing a disability discrimination claim (on top of any unfair dismissal claim if they are terminated), can then be reviewed as relevant.
Covid has exacerbated addiction levels and mental health distress. Workplaces need to review existing policies and procedures and train managers to be vigilant when it comes to recognising causes for concern. Legal advice should always be sought and advice taken on a case-by-case basis as to which process to follow to avoid future risks and legal repercussions.
Helen Crossland is a partner at Seddons