Drugs and Alcoholby Ian Robinson
Inevitably, there are legal ramifications to the abuse of drugs or alcohol in the work situation and you may feel that, as a manager, you are in the firing line. The best protection for you is to make sure that your organisation has a clear policy. If not, perhaps now is the time to make your name known by insisting that a policy is drawn up and implemented without delay.
Equally, if there is a policy, you must ensure that all your team are familiar with it and clearly understand it. In addition, all new employees should be given a handbook outlining organisation regulations, including the drugs and alcohol policy.
Below are some of the questions that you, as a manager, might find yourself asking.
What if you do nothing?
If you suspect drugs are being used or sold at work, what could happen if you do nothing about it?
Under the Misuse of Drugs Act 1971, it is a criminal offence, for which you could be imprisoned, for a person who is ‘concerned in the management of any premises who knowingly permits or suffers the production or supply of controlled drugs OR the use of certain drugs.’
Therefore, being a manager and doing nothing is not an option. As a manager, you are ‘concerned in the management’ of the premises and, if you suspect the activity and do nothing about it, the law will consider you as ‘knowingly permitting or suffering’ the use or supply.
(Incidentally, the supply of controlled drugs is not restricted to financial transactions, but extends to giving drugs to another person or sharing with another).
What about testing?
Perhaps you have wondered whether you can legally test an employee at work for drugs or alcohol. The answer to this is that employees can be tested for drugs – as long as the testing is compliant with human rights legislation.
Firstly, the circumstances when a person can be tested must be stipulated in the organisation Drugs and Alcohol Policy. Secondly, the test can only be carried out by a person trained in the collection of samples, who will ensure that the procedure followed is a legally-defensible process.
Refusal to take a test, when required in accordance with the paragraph above, can be regarded as an act of gross misconduct for which the employee can be disciplined and dismissed (see Screening). This, of course, is where having a clear policy, agreed with staff members, comes in.
What should I do with drugs, if they are found?
If you are handed a packet of drugs by a member of staff, who has found them on organisation premises, where do you stand legally? Under the Misuse of Drugs Act 1971, you cannot possess a controlled drug unless you are an authorised person (doctor, pharmacist, police officer and so on).
However, there is a legal defence to having a controlled drug in your possession if, knowing or suspecting it to be a controlled drug, you take possession of it for the purpose of preventing another person from committing or continuing to commit an offence in connection with that drug, always provided that as soon as possible after taking possession of it you take all such steps as are reasonably open to you to destroy the drug or to deliver it into the custody of a person lawfully entitled to take custody of it.
Just destroying and disposing of a drug could be problematic, however, as you would be leaving yourself exposed to the possibility of accusations that you kept the drugs for your own use. Also, the method of disposal may not be legally or environmentally sound (for example, flushing down the toilet).
For these reasons, the organisation policy should clearly lay out the procedure to be followed when suspected illegal substances are discovered on the premises, including the storage and disposal methods, and managers must be trained in the legal issues and the implementation of the policy.
Can I send them home?
Do you have the right to send an employee home if you suspect they are under the influence of drugs or alcohol at work? The answer to this is yes, but organisation policy must be followed. In fact, if a manager does not take any action in these circumstances and an accident occurs or injury is caused as a result of the employee being ‘under the influence’, then the manager and/or the organisation could be liable.
Although sending someone home would solve the problem in the short term – for example, by preventing an accident – it would not, however, resolve the issue in the long term.
How would you ‘prove’ at any subsequent disciplinary hearing, or indeed at an industrial tribunal, that the employee was under the influence or intoxicated? Obviously, testing the person for drugs or alcohol would provide the evidence, but managers should also be trained to recognise the signs and symptoms to identify if a person is intoxicated.
Do I have to inform the police?
You are not obliged to inform the police if you find a member of staff with drugs, but the response to this situation should be dictated by the circumstances.
If a member of staff, for example, has a cannabis cigarette (reefer) in their possession at work, with no other aggravating circumstances, then the matter may be appropriately dealt with as a minor disciplinary offence. However, if a member of staff is selling heroin on the organisation premises, then this may well require the involvement of the police.
Again, the organisation policy should provide guidance on this issue and the decision should be taken by a senior member of staff, ideally in consultation with the manager dealing with the incident.