Many of us have been known to enjoy a drink or two and many employers often throw staff parties at which some may get a bit worse for wear. There is a difference, though, between someone who has a blow-out every now and again and those with problems of addiction and substance abuse.
The cost of substance abuse for employers is high, and not just with possible health and safety risks or the reputational risk of negative PR. Employees with substance abuse/addiction problems tend to have higher levels of sickness absence and lower job productivity or performance levels; the likelihood is that those individuals will need a lot more care and attention from their managers.
In the first of our three-part guide, we focus on identifying the problem and briefly touch on the link between dependency and disability.
Spotting the problem
The biggest initial hurdle is to get the employee to recognise their problem and speak to their employer about it.
Managers could be forgiven for simply focussing on the specific management issues caused by the addiction. It is not always easy to identify the underlying issue. People with drug or alcohol dependency are often in denial about their condition and the need for treatment and are often adept at masking problems flowing from their addictions. Educating managers is a crucial first step to identifying the real problem. Random testing and/or search policies can also help to identify an issue.
The following can be flags for dependency issues:
• Extended breaks/early departures
• Increased sickness absence/AWOLism/unexplained disappearances
• Careless mistakes, errors in judgement, missed deadlines
• Disregard for own safety or safety of others, needless risk taking
• Poor concentration / impaired memory
• Lower productivity and poor/inconsistent work quality
• Financial problems
• Dropping old friends/colleagues
• Unpredictable/defensive reactions (eg. blaming others for own short comings)
• Complaints about problems at home
• Deterioration in personal appearance
• Complaints and excuses (eg. vaguely defined illnesses, not sleeping well)
• Attending for work under the influence (eg. unusually hyper/animated manner or smelling of alcohol) or after the effects have worn off (eg. unusually lethargic state/low mood)
• Slurred speech
It is crucial that managers follow appropriate procedures for conducting return to work interviews and appraisals to facilitate open dialogue. A good relationship is also essential so that the employee feels comfortable talking about such sensitive matters. If there are reasonable grounds for believing there is an addiction problem, managers should ask challenging but open questions so that the employee has the opportunity and space to open up. Appropriate help can then be provided.
If someone has a dependency, they are ill. Could they be disabled?
The Equality Act 2010 defines disability as “a physical or mental impairment that has a substantial and long term adverse affect on a person’s ability to carry out day to day activities”. Addiction, whether drugs or alcohol, is specifically excluded from this definition. That being said, conditions which often flow from addiction can qualify as disabilities. Addiction often goes hand in hand with conditions such as depression and liver/heart disease and sufferers could certainly satisfy the definition of disability if those conditions were sufficiently serious.
With no cap on awards in discrimination claims, employers must take care to ensure that any management action could be explained by reference to behaviour rather than any disability but this will often be very difficult to disentangle. If, for example, an alcoholic with clinical depression is persistently late or AWOL, the employer should try to find out precisely what caused the poor conduct (was it the drinking or the depression?). Action should focus on the misconduct rather than any depression which may have caused the drinking in the first place. Otherwise, they risk a finding that the individual was treated unfavourably because of conduct arising from his disability (discrimination arising from disability) or the application of a provision criterion or practice (e.g. the absence reporting rules) which put those with addiction related disabilities (and the individual concerned) at a particular disadvantage (indirect disability discrimination). They may also need to consider making reasonable adjustments to take account of disability.
To defend any claims of discrimination arising from disability or indirect discrimination, an employer would have to establish that the action taken was a proportionate means of achieving a legitimate aim, and satisfy the Tribunal that it did not fail to make reasonable adjustments.
In part two of our blog, we focus on how an employer should deal with dismissing a person who has dependency issues. We will also start to think some of the creative ways employers can support their staff and the benefits that can bring for all concerned.