In part one of our blog on dealing with addiction we addressed how to spot addiction problems and the issues around disability discrimination. In part two we look at how to conduct a fair dismissal.
Sometimes an employer will be faced with a situation where there is no other option but to dismiss. In order to defend any unfair dismissal claim that followed, an employer would have to satisfy the Tribunal that the appropriate procedures were followed and the dismissal was within the band of reasonable responses, which is decided by reference to the circumstances of the case.
Grappling with severe personal problems, such as suicidal thoughts or severe financial difficulties often leaves those with dependency issues struggling to engage with any management process. Dealing with the individual sensitively and ensuring they understand the process will clearly be of benefit to both parties.
The case of Sinclair v Wandsworth Council, which concerned the dismissal of an alcoholic employee, gave clear guidance that a Tribunal will look at whether the employer has acted to ensure the employee fully understands what he needs to do to keep his job and that he will be dismissed if he does not pursue treatment more actively and improve his conduct. This would be equally applicable to performance or other issues.
If the employer does have to take the step of dismissing an individual with dependency issues, there will be a better prospect of a finding that the dismissal was within the band of reasonable responses (and/or that action taken was a proportionate means of achieving a legitimate aim) if it has been dealt with sensitively with the individual, the employee has been given the chance to improve and provided with extra-curricular support (involving occupational health and supporting treatment recommended by them). This must go together with ensuring total clarity on the standards of conduct/performance expected.
It may be possible to avoid dismissing an employee altogether and using a creative and holistic approach could go some way in helping to do this.
What other sort of support can employers offer?
Promoting wellness programmes to emphasise the advantages in following healthy lifestyles, exercising regularly, drinking moderately and avoiding the use of recreational drugs will all help to create a healthy environment. Many companies provide healthy snacks and free health checks to promote health and wellbeing but this won’t persuade everyone. If an employee does have dependency issues, he/she will often have a raft of other troubles and it is important that the employer understands these in order to tailor support and management.
Addictions often go hand in hand with complicated personal lives, poor ability to organise, weak concentration and memory. Many managers are not confident that individuals fully engage with management processes or understand the gravity of the situation. Particularly where managers have previously been lenient or turned a blind eye to some more minor instances of poor conduct or performance, some staff may not appreciate that the business is unable to tolerate further lateness, instances of AWOL or poor performance or sickness absence rates.
Although strictly speaking, employees only have the right to bring a companion to certain meetings (such as disciplinary hearings or appeal hearings), it can really help if the employer considers allowing the individual to bring a companion other than a colleague or trade union representative with them to any meetings. A family member or addiction sponsor may be able to provide extra support and guidance to help to reinforce the message to the employee, and this could be invaluable for all concerned. It may occasionally be appropriate for a manager to approach friends or family directly for reinforcement.
Depending on an employer’s resources, access to confidential counselling or a tailored substance abuse treatment programme can provide crucial backing for recovery. In any event, though, occupational health advice should be obtained at an early stage so that recommendations made for the individual’s treatment can then be endorsed by the employer. Consideration should be given to relevant adjustments to the employee’s role – for example, if working anti-social hours or doing certain tasks has a disproportionate impact on the employee’s capacity to resist his addictions, changing his hours or duties may assist. There may also be some merit in applying flexibility to standard triggers in terms of absence or poor performance. Whilst dependency itself is not yet defined as a disability under the Equality Act 2010 (see part one) such that making reasonable adjustments will not be required by law in every case, giving the employee extra chances to improve behaviour/conduct/performance will provide encouragement and would stand the employer in good stead in any Tribunal hearing.
In our third and final blog in this series we will take a look at implementing what is known as a “Contract of Commitment”.