UK - KNOW YOUR RIGHTS if employers find out you've been using drugs

[ramjet]

I thought fellow SWIMers may find this guidance on employment policy relating to drug use interesting: http://www.acas.org.uk/index.aspx?articleid=698

ACAS is not binding, but Employment Tribunals do find ACAS guidance codes highly persuasive when deciding matters of employment law.

At present after a year's continuous employment, employers may only dismiss employees if the following two criteria are satisfied:

1. The dismissal must be for one of five established reasons - capability, conduct, redundancy, the employment itself is illegal (eg employing illegal alien) or some other substantial reason. AND

2. The employer must have used a fair procedure and it must have been reasonable for the employer to finally decide to dismiss the employee once the procedure has been carried out.

It is for the employer to establish on balance of probabilities that the dismissal was fair.

This means that off premises drug use must either affect "conduct" or be serious enough to fall into the "some other substantial reason" catagory, which it might well do. However, an employer can only dismiss someone over off duty drugs use where a proper procedure has been implemented and observed and where it is reasonable to do so. When is it reasonable to do so? This is the interesting part. It looks like sacking someone on the spot for out of work drug use may well be unfair dismissal unless it can be proven by the employer on balance of probabilities that the drugs use adversely affects your ability to do your job. The following sentences in the ACAS guidance are of particular interest:


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"Dismissal for off duty misuse of drugs or other substances may not be fair unless employment was adversely affected"
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"Off duty drug use may sometimes be used as a reason for dismissal. However, any resultant claim of unfair dismissal will not necessarily be found fair by a tribunal even if there is a police conviction. In such cases it is likely that employers will need to prove that the use of drugs had an adverse effect on employment - for example, a deterioration in performance or significant damage to the public image of the company."
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With regards to procedure:


"If drug and other substance misusers can be helped by counselling and advice, it may be possible to retain them as useful workers. However, there may be instances where employees refuse help or where help is not successful. In these cases it may be necessary to consider disciplinary action. The effects of drug abuse will normally be manifested in problems of conduct or capability. In either case it is important to follow a fair disciplinary procedure, to carry out a full investigation and to allow the worker to state his or her case accompanied by a trade union official or co-worker if he or she wishes. Any company policy on drugs should also be taken into account."


"As with suspected alcohol misuse, it is best to concentrate on any performance problems and proceed with caution taking similar steps to those recommended for dealing with a suspected alcohol problem as follows:

- keep accurate, confidential records of instances of poor performance or other problems

- interview the worker in private. If the worker is under the influence of drugs and is not fit to be interviewed, wait until the effect of the drugs has worn off

- concentrate on the instances of poor performance that have been identified

- ask for the employee's reasons for poor performance and question whether it could be due to a 'health' problem, without specifically mentioning drugs in the first instance

- discuss possible work-related causes such as excessive workload or too much responsibility

- if appropriate, discuss the organisation's drugs policy and the help available inside or outside the organisation

- agree future action

arrange regular meetings to monitor progress and discuss any further problems if they arise. Counselling for a problem related to the misuse of drugs or other substances is a delicate process and may best be tackled by a trained counsellor. In the first instance, the manager or the supervisor should discuss any problems with, for example, timekeeping and/or performance. The worker may then be offered the opportunity to discuss any underlying cause, if appropriate, with a trained counsellor, possibly in the presence of the manager concerned."

Reputation Comments on this post:

Excellent piec

[grecian]

Originally Posted by ramjet

It looks like sacking someone on the spot for out of work drug use may well be unfair dismissal unless it can be proven by the employer on balance of probabilities that the drugs use adversely affects your ability to do your job.

This is indeed the case, swims friend recieved an out of court settlement from his former employer for such an offence, swim recalls his suprise that the former employer of his friend did not seem willing to take the case to court, perhaps the guidelines in your post go some way to explaining this.