Alcohol misuse during the Christmas period: overview

Nicola Doran of Osborne Clarke begins a series of articles on dealing with alcohol misuse during the Christmas period with an overview. Employers need to be aware of the potential consequences for their business of alcohol misuse by employees, which may increase over the Christmas period. Reinforcing a clear alcohol policy may help to reduce the incidence of alcohol misuse. 

Introduction

The misuse of alcohol by employees creates a number of problems for employers. During the run-up to Christmas, employees' alcohol consumption may increase due to long lunches, and work and other social events. Employees sometimes assume that their employer's normal rules and policies relating to alcohol use will be relaxed during the festive season. As a result, problems relating to alcohol consumption and the workplace may come under the spotlight during the pre-Christmas period.

Working under the influence of alcohol - implications

As well as managing absence levels that may result from employees' alcohol misuse, employers need to be aware of the risks to their business of allowing employees to attend work under the influence of alcohol, either as a result of consumption during lunch breaks or over-indulgence at a social event the night before. Employees who are under the influence of alcohol may:

• suffer from poor performance and impaired productivity;
• fall asleep on the job;
• have poor judgment and reduced ability to make sound decisions;
• create health and safety risks;
• act in a way that damages the reputation of the employer (for example by giving poor service or behaving inappropriately towards clients and other staff);
• act in a manner that is offensive, which could result in allegations of harassment; and/or
• become violent or aggressive.

The potential for health and safety risks to arise as a result of an employee being under the influence of alcohol depends on the nature of the workplace. The risk is greater in, for example, workplaces involving moving machinery or dangerous substances, than in an office environment. In certain environments the risk of immediate and serious danger to employees is increased by alcohol consumption due to the consequent lack of concentration and impairment to judgment. Employers have a general duty under health and safety legislation to ensure the health, safety and welfare at work of employees. Knowingly allowing an employee to continue working where his or her behaviour places the individual or others at risk could result in the employer being in breach of its duty of care.

Over and above the damage to business and client relationships that may result from an employee's alcohol misuse, it is important for employers to bear in mind that they may be vicariously liable for the actions of their employees. Although vicarious liability applies to acts by employees done "during the course of their employment", this has been interpreted widely and can include acts carried out during work social events. Therefore, employers could be liable for claims arising from employees' discriminatory behaviour towards others at work events, or employees' involvement in drink-driving-related accidents on the way home.

Employers' approach to alcohol use

Employers should decide on an appropriate and consistent approach to dealing with employees who attend work under the influence of alcohol, or who drink alcohol before or during working hours. Employers with workplaces in which there are health and safety risks associated with working under the influence of alcohol are likely to adopt a zero tolerance policy to drinking during working hours. Employers that regularly entertain clients may take a more relaxed approach to alcohol consumption in the workplace, within certain limits.

Employers should have a clear policy that sets out what is, and is not, acceptable in relation to alcohol consumption before and during working hours and the consequences of non-compliance with the policy. Prior to periods such as Christmas, it is sensible for employers to remind employees (possibly via an email to all) that a policy on alcohol use is in place, the requirements of the policy, and that it will continue to apply during the festive season.

Dealing with drunkenness at work

If an employee is intoxicated at work, the employer should deal with the situation immediately and consistently, and in accordance with any existing policy or normal practice. The employer should initially:

• hold a brief meeting with the employee to assess the seriousness of the situation;
• remind the employee of its policy on alcohol consumption (ie that it is not tolerated, or that employees are permitted to drink responsibly only to the extent that their work is not affected), and that a breach of the policy may lead to disciplinary action;
• inform the employee if he or she is alleged to have breached disciplinary rules (for example he or she has fallen asleep, or displayed aggressive behaviour) or failed to follow required procedures or work practices;
• decide whether or not the employee poses a health and safety risk;
• decide whether or not the employee is fit to carry out his or her duties;
• send the employee home if necessary, until he or she is fit to return to work; and
• prevent the employee from driving if he or she came to work by car, and arrange alternative transport home.

Is disciplinary action appropriate?

Having dealt with the immediate problem of the presence at work of an employee who is under the influence of alcohol, and removed him or her from the workplace if necessary, the employer should decide whether or not to pursue the matter further through the disciplinary procedure. To avoid allegations of unfair treatment, employers should act consistently and in accordance with their alcohol policy if they have one, and normal disciplinary rules and procedures. However, in the event of one-off, minor incidents, consideration should be given to whether or not disciplinary action is an appropriate and proportionate response, particularly in the context of the Christmas period.

Where employees display more than a little "festive cheer" and their alcohol consumption impacts on their ability to carry out their role, compromises health and safety, or leads to rude or aggressive conduct, disciplinary action is likely to be a proportionate response. It may be necessary to suspend an employee in these circumstances, pending a full investigation. Depending on the outcome of the investigation, disciplinary action may follow. There are a number of factors that employers should consider when deciding if formal disciplinary action is appropriate, and what level of action to take, namely whether or not:

• the employee's actions have impacted on the employer's business, and to what degree;
• the employee's behaviour was an isolated occurrence;
• the employer's rules on alcohol use are clear and consistent;
• the employee breached a workplace policy or disciplinary rule due to being under the influence of alcohol (for example, he or she was rude to a customer or took unauthorised absence), and the extent of that breach;
• the employee already has a current formal disciplinary warning for similar conduct on his or her file; and
• there are mitigating circumstances that explain the employee's conduct (for example personal or work pressures have caused him or her to behave in a way that is out of character).

In some cases an informal warning may be a suitable course of action, with a caution that a repeat occurrence may result in formal disciplinary action.

Next week's article will be a checklist for employers for avoiding alcohol-related problems in the workplace and will be published on 7 December.

Nicola Doran (nicola.doran@osborneclarke.com) is a solicitor with the employment team at Osborne Clarke.

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