Alcohol misuse during the Christmas period: employers' checklist

Helen Dallimore of Osborne Clarke continues a series of articles on dealing with alcohol misuse during the Christmas period with a checklist that sets out some practical steps that employers can take to reduce, and deal with, alcohol misuse in the workplace, which may increase in the run-up to Christmas.  By ensuring that the rules on alcohol use during working hours are clear, applying an alcohol policy consistently and dealing with incidents of drunkenness at work quickly, employers can help to reduce the risks associated with alcohol misuse by employees. 

1. Identify the potential risk to the business of alcohol misuse by employees and the correct approach to adopt. 

The level of risk associated with employees being under the influence of alcohol at work varies across employers and the nature of the work performed. In some workplaces, for example those involving the operation of moving machinery, employees who attend work under the influence of alcohol may present an immediate and serious danger to themselves and others. In other workplaces (such as office environments) the risks may not be quite so apparent and some drinking at social events may be commonplace. However, all employers should be concerned about the potential effects of alcohol at work. Alcohol consumption can:

  • interfere with work performance, attendance and productivity;
  • impair judgment and decision-making;
  • lead to irresponsible behaviour, damaging the employer's reputation; and
  • increase the potential for problems between staff due to aggressive, violent or harassing behaviour that may result.

Therefore, employers should review their business and the roles within it to determine whether or not a zero tolerance policy on the consumption of alcohol should be adopted, or if a policy that permits sensible drinking only is more appropriate.

2. Ensure that disciplinary rules include alcohol misuse.

Employers should ensure that their disciplinary rules prohibit employees from being under the influence of alcohol in the workplace and that the wording in the disciplinary policy reflects their approach to alcohol misuse. Disciplinary procedures should include, as an example of gross misconduct, wording to the effect of "serious incapability at work brought on by alcohol or illegal drugs" (in accordance with the Discipline and grievances at work: Acas guide (PDF format, 898K) (on the Acas website)). Employers that adopt a zero tolerance approach to alcohol use by employees should also make clear that being under the influence of alcohol during working hours will be treated as gross misconduct and could result in summary dismissal.

Employers should also ensure that disciplinary rules forbid the type of behaviour that may occur as a consequence of employees being under the influence of alcohol, for example:

  • obscene language or other offensive behaviour;
  • negligence in the performance of duties;
  • physical violence, bullying or threatening behaviour;
  • bringing the organisation into serious disrepute;
  • causing loss, damage or injury through serious negligence; and
  • breaching health and safety rules.

The disciplinary policy should refer to the requirement to comply with drink-driving legislation and explain that an employee who commits a drink-driving offence is likely to damage the employer's reputation, particularly if the offence is committed while the employee is driving in the course of his or her duties or in one of the employer's vehicles. Employers should make clear that employees risk disciplinary action in these circumstances.

Some employers may wish to include as a disciplinary offence a failure to comply with a reasonable request to see the company doctor or be referred to occupational health where the employer considers that the employee may have an alcohol-dependency problem. Failure to submit to appropriate alcohol and drug screening tests may also be listed as a disciplinary offence in some cases. However, the non-statutory guidance on the Data Protection Act 1998 in the Employment practices data protection code (PDF format, 12MB) (on the Information Commissioner's Office website) makes clear that testing is appropriate only if there are serious health and safety concerns in relation to drugs and alcohol misuse (for example, where staff drive or operate machinery) and that testing should be carried out only with the explicit and informed consent of the individual.

3. Adopt an alcohol policy.

By adopting a policy on alcohol misuse (which may be combined with the employer's policy on drug misuse) employers can set the required standard, specify their expectations and help to ensure that employees who attend work under the influence of alcohol are treated consistently.

An alcohol policy should include:

  • an explanation of what kind of behaviour is, and is not, tolerated;
  • an explanation of what action the employer will take if an employee is under the influence of alcohol at work; and
  • if appropriate, provision for testing for alcohol.

The policy should also address how the employer will support employees who have an underlying alcohol addiction problem.

4. Consider reminding employees about their obligations in relation to alcohol use.

During the festive period some employees' alcohol consumption may increase due to social events and long lunches. Employers should consider reminding employees of their alcohol use policy and the consequences for employees if they fail to comply with required standards. Employers could make a general announcement to all employees via email or other means. By doing so, employers may reduce the number of alcohol-related incidents and be in a better position to defend claims of vicarious liability for employees' actions. Suggested wordings are set out below.

Workplaces in which there are serious health and safety consequences of employees attending work under the influence of alcohol

"In the run-up to Christmas there are inevitably social events and parties. While the Company wishes everyone to enjoy the festive period, you are reminded that the nature of the Company's business means that there are serious health and safety risks connected with employees being under the influence of alcohol or drugs in the workplace. Consequently, in the interests of your own safety and the safety of those around you [and in accordance with the Company's disciplinary rules and the alcohol [and drug] use policy] you must not drink or be under the influence of alcohol during the working day or during lunchtime or breaks, or at work-based meetings or events.

"Drinking alcohol while at work without authorisation or working under the influence of alcohol may be considered gross misconduct and could result in disciplinary action being taken against you, including summary dismissal."

Workplaces in which there is less risk associated with alcohol consumption

"In the run-up to Christmas there are inevitably social events and parties. While the Company wishes everyone to enjoy the festive period, you are reminded that you are expected to demonstrate responsible behaviour at work, work-related functions and social events. Should you consume alcohol before or during working hours, or at work social events, you are expected to do so responsibly and not in a way that will impair your work performance or lead to behaviour that may damage the reputation of the Company. Employees who attend work under the influence of alcohol may be subject to disciplinary action [in accordance with the Company's disciplinary rules and the alcohol [and drug] use policy]."

For all workplaces

"The Company reserves the right to suspend you from your duties [with pay] pending an investigation if it reasonably considers you to be under the influence of alcohol in the workplace.

"The Company expects all employees to comply with drink-driving legislation at all times. The Company's reputation will be damaged if you are convicted of a drink-driving offence, particularly where the offence is committed in the course of your duties or while you are driving one of the Company's vehicles. Such conduct could result in disciplinary action, including summary dismissal, being taken against you. If your job requires you to drive and you lose your licence (as a result of an offence committed in the course of your work or otherwise), you may be unable to continue to perform your job, and the Company may be left with no alternative but to terminate your employment."

5. Be consistent when applying the rules and policy on alcohol use.

Employers should ensure that they apply rules relating to alcohol use fairly and consistently, to avoid allegations of unfair treatment. Although different types of working environment within an employer's undertaking may justify different rules to some degree, employers should ensure that the reason for any difference in treatment can be justified, and that differences are kept to a minimum. Further, the same approach should be adopted across levels of seniority and managers should be required to comply with the alcohol policy in the same way as junior employees.

6. Deal immediately with employees who are under the influence of alcohol in the workplace.

Employers that suspect that an employee is under the influence of alcohol should act immediately to reduce the risk of negative consequences and demonstrate that they are taking the matter seriously. An employer confronted with an employee who appears to be under the influence of alcohol should:

  • hold a brief meeting with the employee to assess the seriousness of the situation;
  • remind the employee of its policy on alcohol misuse (ie that there is a zero tolerance policy or that sensible drinking only is permitted);
  • remind the employee that a breach of the policy may lead to disciplinary action;
  • inform the employee if he or she is alleged to have breached other disciplinary rules, for example he or she has been aggressive towards others;
  • send the employee home if he or she poses a health and safety risk and/or is incapable of carrying out his or her role;
  • suspend the employee pending further disciplinary investigation if necessary;
  • arrange transport home for the employee if necessary; and
  • call the police if the employee is aggressive and/or refuses to go home.

7. Take disciplinary action if appropriate.

If an investigation into an employee's conduct reveals that there is a disciplinary case to answer, the employer should consider taking formal disciplinary action. Whether or not disciplinary action is appropriate, and if it is the level of action that the employer should take, depends on the circumstances (see Alcohol misuse during the Christmas period: overview in this series for more details). By taking formal action employers send a message to employees that they consider alcohol misuse to be a serious issue that will not be tolerated. Employers should apply the disciplinary process fairly and consistently to avoid allegations of unfair or discriminatory treatment.

Next week's article will be a case study on dealing with alcohol misuse during the Christmas period and will be published on 14 December.

Helen Dallimore (helen.dallimore@osborneclarke.com) is a solicitor with the employment team at Osborne Clarke.

Further information on Osborne Clarke can be accessed at www.osborneclarke.com.