In our two previous blogs we have talked about ways of identifying those employees with substance abuse problems and how to deal with such employees. We have also touched on other, more innovative, ways of supporting an employee with substance abuse problems.
In recent years, more and more companies are choosing to use something called a “contract of commitment” to agree an action plan with the employee. Essentially, this is a document which sets out the employee’s commitments in terms of required standards of behaviour/performance and records their proactive efforts to conquer/manage their addiction. It should be drafted in consultation with the employee and the relevant medical/occupational health professional so that all treatment recommendations are set out along with all of the measures the employer has committed to provide in terms of supporting the employee.
Making it tripartite can strengthen the agreement yet further because, in signing the agreement, the occupational health (or other medical) professional involved in the employee’s treatment also affirms their recommendations. Although not a “contract” in the legal sense, it can be an extremely useful tool to support the employee in achieving appropriate standards of behaviour by bringing all support measures together, setting timescales and ensuring that the individual fully understands what he needs to do to keep his job.
A contract of commitment could be used in conjunction with any management process but is most relevant in situations involving performance or disciplinary issues. It should usually sit alongside a final written warning issued in accordance with normal procedures and, as such, should clearly state that, if the employee breaches the agreement, further action will be taken as appropriate (including a warning that this could include dismissal without notice). It is also useful to include an acceptance of searches and/or testing so that progress can be monitored. If the employee breaches the agreement and a dismissal follows, the contract of commitment will be an essential record of what the employee was told and the steps the employer took to provide support and/or point him in the direction of help.
Based on guidance from Sinclair v Wandsworth Council which concerned the dismissal of an alcoholic employee, this will be essential evidence to show a Tribunal the employer has acted reasonably by being absolutely clear and ensuring the individual understands his responsibilities. In signing a carefully drafted contract of commitment, all parties agree to adhere to the terms set out and, crucially, the employee confirms that, in signing, he understands that any breach of the agreement could lead to further action and possible dismissal.
A contract of commitment will hopefully be the final warning bell that motivates the employee towards recovery and in some cases will result in the retention of the individual. But, if it fails, a dismissal would be substantially more likely to be fair – something not to be underestimated given the tricky issues to be balanced in these cases.
It is important to remember that when dealing with an employee who has dependency problems, the key to success is for managers to create an open and supportive environment with the aim of collaborating to conquer the dependency. An employer that shows it cares about its staff can avoid unfair dismissal risks, save the cost of replacing staff and impact positively on the workplace. Moreover, employees who have been supported in this way should not only return to full productivity and good standards of behaviour but may also become real advocates of the business, ready to go the extra mile in work.
If you have any questions or would like specific advice, please get in touch.