Drugs and Alcohol in the Workplace: What Impact Does Health and Safety Law Have?

23 October 2015

Author: Olivia Carroll
Practice Area: Health and Safety

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Legislation

There is a wide spectrum of health and safety legislation, which places duties on employers and employees, but is there any that regulates the (often difficult) issue of substance misuse in the workplace?

The key pieces of health and safety legislation that are applicable when considering these issues are:

  • Health and Safety at work (Northern Ireland) Order 1978 (‘the Order’)
  • Management of Health and Safety at Work Regulations (Northern Ireland) 2000 (‘the Regulations’)

The Order creates a general duty[1] on employers to ensure the health, safety and welfare, so far as is reasonably practicable, of all employees and of persons not in their employment[2]. There is also a duty on employees to look after their own health and safety and to cooperate with employers so far as is reasonable to enable them to fulfill their duties[3].

The Regulations create duties on employers to make suitable and sufficient assessments of risks to employees and persons not in their employment[4] and to make appropriate arrangements for the planning, organisation, control and review of preventative and protective measures[5].

Failure to comply with the legislation is a criminal offence, which could result in a prosecution of the Company and/or an individual. Depending on the seriousness of the offence, the Court can impose an unlimited fine and/or imprisonment for the individual.

What are your responsibilities?

If a worker is under the influence of drugs or alcohol then they may compromise  the health, safety and welfare of themselves and/or of others. Employers have a duty to assess and manage any risks in order to ensure the health and safety of employees and third parties and to take steps to remove or control them.

The duty is to do what is reasonably practicable. This does not, therefore, mean that an employer has to do absolutely everything, just as much as is considered reasonably practicable. Employers will need to balance the risk against the level and type of measures

that need to be taken to counteract it. This can take into account factors such as: cost, benefit, the potential for harm and the available technology.  

If a Company knowingly allows a worker, who is under the influence of drugs or alcohol to continue working, then it could be in breach of the legislation.

Substance misuse can lead to absenteeism, poor performance, and importantly, can create a risk to safety. It can cause impaired judgement, which can have disastrous consequences in safety critical jobs. This would almost certainly be considered as part of any investigation if something went wrong.

What can you do?

It is up to you how you comply with your duties under the legislation. There is guidance, produced by HSENI and by the Health and Safety Executive in Great Britain (‘the Guidance’), on these issues. It can be found here and here. You are not legally obliged to comply with the guidance, but it is a good starting point if you are beginning to look at these issues, or reviewing policies you already have in place.

The Guidance advises that employers should introduce a policy, as part of the overall health and safety policy, to deal with potential misuse of alcohol and drugs. The policy should be aimed at helping and working with employees, rather than just being a disciplinary matter.

Any policy should apply to all employees and not just, for example, one area of the business.

You can also consider screening and/or testing for substance misuse. This may be useful in dealing with any concerns. The Guidance advises that, if it is felt to be necessary, then it should be part of an overall policy (and not the only tool to deal with substance misuse) and that there should be a clear aim of preventing risks to workers and others.

Screening and testing is a sensitive issue so good communication with employees is advisable.

Be aware that you must also consider your obligations under employment and data protection legislation.

Commentary

Employers have a general and wide-ranging duty to protect the health, safety and welfare of employees and third parties, which includes protecting against any risk caused by substance misuse.

Prevention is better than cure – even if substance misuse is not suspected, it would be advisable to:

  • Assess the risk and consider whether preventative measures are required;
  • Implement a policy and the Company’s position on this issue will be clear;
  • Ensure good communication with employees about this issue; and
  • Consider your obligations under employment and data protection legislation.

For more information, please contact Olivia Carroll or another member of our health and safety team.

[1] Article 4, Health and Safety at Work (Northern Ireland) Order 1978

[2] Article 5, Health and Safety at Work (Northern Ireland) Order 1978

[3] Article 8, Health and Safety at Work (Northern Ireland) Order 1978

[4] Regulation 3, Management of Health and Safety at Work Regulations (Northern Ireland) 2000

[5] Regulation 5, Management of Health and Safety at Work Regulations (Northern Ireland) 2000

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