Employee Drunk at Work? Advice for HR

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This guide provides practical advice for employers faced with an employee who is suspected to be drunk at work. It is often forgotten that alcohol can remain in the bloodstream for up to 24 hours, so an employee could turn up for work the next day and still be under the influence.

If an employee turns up to the workplace and is unfit to work due to being hung over or under the influence of alcohol, you should deal with the matter in line with your policy on alcohol use in the workplace and your disciplinary procedure. Some employers strictly ban the drinking of alcohol during or before work, whereas others, depending on the sector, may allow moderate alcohol consumption. For example, during a celebration or lunch break with clients.

How you deal with the matter depends on the rules you have put in place and the extent of the employee’s breach. The employee’s drunkenness should typically be addressed via your disciplinary procedure, but if you have put in place a separate policy regarding alcohol use, for example, during sporting events like the World Cup, you could apply this policy to address the issue.

Employers have a legal duty under the Health and Safety at Work Act 1974 to take care, as far as reasonably practicable, of the health, safety and welfare of its employees. If an employee operates machinery or drives as part of their duties, this puts both the employee themselves and their colleagues at risk. If employers knowingly allow an employee who is intoxicated to continue working, putting the employee and their colleagues at risk, they could face prosecution.

Putting aside the health and safety risk for one moment, other aggravating factors can arise. It could mean that employees come into work late or do not show up at all, leaving their colleagues to plug the gap, or their line manager scrambling to find last-minute cover. If the employee is particularly hungover, they could struggle to perform their role, be unproductive, or worse, make costly mistakes. If service users or clients hear or see of employees undertaking work whilst under the influence of alcohol, it could damage your organisation’s reputation and image. But this does not have to be the case. Having rules in place to deal with employees who turn up the worse for wear, knowing what to do if an individual has a dependency on alcohol, or how to control excessive consumption at company events, is essential.

 

What employers should do if an employee is drunk at work

Evidence should be gathered and if an alcohol test is carried out (as per your alcohol policy or their contract of employment), it is probably sensible to have a witness present. If an employee refuses to agree to the test, it is not necessarily a bar to taking action. The refusal can be used at future disciplinary proceedings providing they are aware of the company policy regarding the use of alcohol or there is a specific clause within their contract of employment.

Through time, alcohol levels in someone’s body will naturally decrease. As stated previously, working under the influence of alcohol is a serious health and safety risk and could have major implications for the employee and their colleagues. If you have suspicions that your employee is under the influence of alcohol, investigations should take place without delay to make sure that risks are dealt with appropriately and reduced.

Schedule a private meeting with the employee. If you suspect their drinking may be an issue, point them towards relevant assistance programmes, and discuss their performance issues and the consequences for failing to improve.

 

Dependency on alcohol

Employees who persistently turn up drunk at work may be doing so because they are alcohol dependent. In such cases, you may decide to offer and/or encourage the individual concerned to seek medical help or counselling.

If the employee is absent because they are attending counselling or treatment, this should be treated as sickness absence. However, if they fail to follow the recommended treatment or you continue to have issues with their conduct, performance, or attendance, you may decide to take disciplinary action.

 

Alcohol at company events

Employees have been known to turn up to company events and indulge in one too many drinks. Remind employees beforehand that they should behave reasonably and consumption should not be excessive. If there is an expectation that employees are required to turn up on time the morning after the event, you should make this clear to them before the start. You should explain they may face disciplinary action if they fail to attend work the next day because they are too hungover.

During the party, you may decide to restrict the amount of free alcohol available and provide non-alcoholic alternatives. Speak with bar staff and ask them to keep an eye on anyone who appears to be overindulging. You must also ensure that any employees under the age of 18 are not served alcohol. If it appears you have allowed, condoned or encouraged over-consumption of alcohol, it may be problematic to fairly dismiss an employee if they commit alcohol-related offences.

Additionally, you should give careful consideration to how employees will get home after the party. To stop people from drinking and driving, you might consider, if your budget allows, providing a coach to a central place at the end of the evening. Encourage employees to check when the last buses or trains are running and give them contact details for registered taxi companies.

 

Avoiding problems with alcohol at work

If you do not have an alcohol at work policy, there are some things that can help you manage intoxication issues in the workplace:

  • Communicate your expectations surrounding behaviour and alcohol clearly. This could be done via team meetings, company notice board, the intranet or email. Try not to simply insert a written note into a folder and leave it collecting dust on a shelf. This does not benefit anyone.
  • Ensure issues are dealt with appropriately, promptly and consistently. Do not allow certain levels of alcohol-related behaviour to slip and others not.
  • Provide training to line managers on signs to look out for and how to handle alcohol-related issues or incidents at work.
  • If your organisation is in a high-risk sector, an alcohol testing regime may already be in place as part of your health and safety obligations.
  • Find out how you can help employees seek help if they feel they have an issue. Alcohol can become a serious health issue and you have a duty of care to help employees in need. Directing employees towards medical assistance is a first step towards helping them to understand the dangers of alcohol and its misuse.

 

Can an alcohol-related illness be considered a disability?

In the UK, for an employee to be considered disabled as defined by the Equality Act 2010 they must have a “physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.”

Long term is defined as an impairment lasting or likely to last for 12 months or more. This is likely to rule out the possibility of a claim for disability discrimination for having a hangover, for example. But what about those individuals who are dependent on alcohol? Under the Equality Act, alcohol dependency is not classed as a disability in itself, unless the addiction is a result of medically prescribed drugs. That said, employees who are alcohol dependent may have related health conditions, such as problems with their liver, which may amount to a disability. It is also possible that their alcohol dependence is a consequence or symptom of a disability. For example, drinking heavily due to severe depression.

If one of your employees appears to be suffering from dependency, you would be sensible to make further enquiries, including speaking to occupational health (if appropriate) to determine whether the employee could be suffering from an underlying disability.

 

Alcohol at work policy

The introduction of a drugs and alcohol misuse policy can help you to make sure there is consistent treatment of alcohol related issues in the workplace. Employers would be sensible to consider whether provisions relating to occasional drug and alcohol testing, including consequences any for non-compliance, should also be included in contracts of employment.

If an employee informs you they have a drug or alcohol problem, an effective policy should aim to help and support them rather than lead to their dismissal. However, it should also state when you will take disciplinary or other action. For example, that alcohol possession or turning up drunk at work will lead to immediate suspension pending a thorough investigation.

Every organisation can benefit from an agreed policy, which applies to all staff. Such a policy could form part of an overall health and safety policy, but a standalone drugs and alcohol policy has many advantages, leaving less room for misunderstandings.

When deciding what to do, you should consult others, particularly your employees. You should also consult safety representatives appointed by recognised trade unions. If your employees are not covered by such representatives, consult them directly, or indirectly via elected representatives for employee safety.

You may decide to place an outright ban on alcohol consumption on work premises, or prior to or during working hours or breaks. Earlier this year, Lloyds of London banned their employees from drinking alcohol during the working day because around 50% of their grievance and disciplinary procedures surrounded issues resulting from the abuse of alcohol.

Other companies may take a more relaxed approach and allow moderate drinking during lunch breaks or when with clients, provided it does not impair their ability to do their job.

Your policy should clearly state that if an employee reports for work if they are unfit because of the influence of alcohol, this could be regarded as a gross misconduct matter and means they may face disciplinary action under the company’s disciplinary procedure.

Employees may be more likely to come forward and admit they have a problem if they feel assured their issues will be dealt with the utmost confidence. However, if evidence or information supplied to you suggests that an employee’s problem with alcohol has involved them breaking the law, then you will need to use your own discretion in relation to contacting the police.

Some companies reserve the right to demand an employee undergo a medical examination to find the cause of the issue. If the employee refuses, their refusal will normally be treated as gross misconduct. If the examination confirms they were under the influence of alcohol, the employer may reserve the right to suspend the employee while the matter is investigated. After the investigation has concluded, the employer may then decide to take disciplinary action.

If you choose to use screening and testing for drugs and alcohol, you should include that in your policy and in your employees’ contracts of employment.

You should regularly check whether your policy is working and if you need to make changes.

 

Need assistance?

DavidsonMorris’ employment law experts work with employers to support with resolving workforce management issues, including disciplinaries and investigations. Working closely with our team of HR specialists, we provide a holistic approach to managing difficult circumstances that present considerable legal risk, such as alcohol-related issues in the workplace. For help and advice on your legal options as an employer, speak to us.

 

Drunk at work FAQs

Can I be fired for being drunk at work?

If your employment contract classifies being drunk at work as gross misconduct, you could face disciplinary action including dismissal. If you have an addiction problem, your employer should generally work with you to address this first.

What happens if you are drunk at work?

If you are drunk during working hours, your employer should get another employee to drive you home, or arrange transport for you, and arrange a meeting to discuss your conduct using their alcohol at work or disciplinary policies.

Is it a crime to be drunk at work?

There are no specific laws concerning the consumption of alcohol at work, but organisations may have policies in place prohibiting workers from being drunk or drinking at work for health and safety reasons.

Last updated: 13 February 2022

Author

Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.

She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.

Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals

About DavidsonMorris

As employer solutions lawyers, DavidsonMorris offers a complete and cost-effective capability to meet employers’ needs across UK immigration and employment law, HR and global mobility.

Led by Anne Morris, one of the UK’s preeminent immigration lawyers, and with rankings in The Legal 500 and Chambers & Partners, we’re a multi-disciplinary team helping organisations to meet their people objectives, while reducing legal risk and nurturing workforce relations.

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