BEING UNDER THE influence of an intoxicant in the workplace can lead to accidents, poor performance and behavioural difficulties, and may be dealt with by employers as a disciplinary issue.
All employees must ensure that they are not under the influence of an intoxicant to the extent that they are in such a state as to endanger their own safety, health or welfare at work, or that of any other person.
Employers have a statutory obligation to take all reasonable steps to eliminate or reduce risks of unsafe work environments, including risks created by employee substance abuse. Having a policy and procedure in place to test employees for intoxicants may be merited.
There is no statutory requirement for employees to undergo testing in relation to being under the influence of intoxicants; similarly there is no requirement for employers to test staff for intoxicants.
Employers may carry out drug and alcohol testing only where it has been provided for in either the contract of employment, the employment policies and procedures such as the employee handbook, or with the employee’s express consent. Even then, the testing must be proportionate and reasonable.
Where the employee is consenting to the testing, the organisation must notify the employee in advance of the testing occurring, the extent of the testing which is to be carried out, and potential implications should there be a positive result received.
There are three main types of testing that organisations can carry out:
- Pre-employment testing
- Random testing
- With-cause testing
Subject to the contractual terms and/or policies, any employee suspected of being under the influence of intoxicants or involved in a work-related accident may be subject to with-cause testing.
This should be conducted in conjunction with an occupational medical advisor. This is to be applied in circumstances where any employee appears to be under the influence of an intoxicant and therefore would be in breach of the policy within the organisation.
The judgement as to whether with-cause testing needs to be applied can be based on a number of factors including the following: apparent disorientation, unsteadiness, slurring of words, smell of alcohol, admitted or observed taking of illegal or non-prescribed drugs or volumes of alcohol.
It is advisable that in all cases, prior to an employee being requested to undergo with-cause testing procedures, that more than one person will have submitted an opinion as to the existence of circumstances or conditions sufficient to warrant testing – for example, a manager on duty at the time, or staff member.
An organisation should have a clear and detailed drug and alcohol testing policy in place should this testing be required.
Such a policy should include details in relation to intoxicants in the workplace, how an instance where there is a positive case of intoxicant will be dealt with, and the possible consequences of testing positive for such an intoxicant, that this may be considered to be gross misconduct, and will have consequences up to and including dismissal.
Like all other policies, it should be very clearly worded and easy to comprehend.
Organisations should carefully consider whether there is a need to carry out such testing, as the third-party forums may not look favourably on random testing of employees just on a whim.
Testing can be viewed upon more favourably in safety critical industries, where being under the influence of such an intoxicant may have huge impact.
Unfair dismissal case
The below recent case shows the impact of an organisation not abiding to its own policies and procedures.
An ex-employee of a regional airport was awarded over €5,000 in the Labour Court over a case of unfair dismissal.
The worker had been fired from his role as a search unit officer, with the reasons given for the dismissal including “his support for the use of cannabis for medicinal use” and “his passionate advocacy of an illegal drug and his declared position as a cannabis activist”.
The worker took a case believing that he had been sacked for his “political beliefs” on cannabis and sought redress.
The Labour Court did find flaws in how the company approached the dismissal.
It said: “Having carefully considered the facts as presented to the court, the court is satisfied that the respondent proceeded to dismiss the complainant without informing him that it had deemed his actions as ‘gross misconduct’ contrary to its disciplinary procedure.
“Instead it relied on the outcome of the disciplinary hearing to justify summary dismissal. Furthermore, and against the company’s substance abuse policy, no referral was made to the chief medical officer on his behalf.”
Because of this, a ruling was made that this amounted to unfair dismissal. However, despite the complainant wishing to be reinstated to his job, the Labour Court determined that wasn’t the appropriate course of action, and awarded him compensation instead.
It is clear that while in some circumstances it may be reasonable to dismiss an employee who attends for work under the influence of alcohol and/or drugs, or who fails an intoxicants test, employers still need to adhere to their workplace policies.
In addition, each case should be assessed on its own particular set of facts to decide what sanction is appropriate in the circumstances.
Factors such as risk to safety, the level of responsibility, if the employee has contact with the public should be taken into account in deciding whether or not the penalty of dismissal is a reasonable and proportionate response in the situation.
Derek McKay is managing director of Adare Human Resource Management.