EMPLOYMENT CASE LAW - Drug and alcohol testing
The area of Drug and Alcohol testing of Employees who are suspected to be under the influence of either drugs or alcohol, or another type of intoxicant, is a contentious topic for Organisations.
There is no statutory requirement for Employees to undergo testing in relation to being under the influence of intoxicants; similarly there is no requirement for Employers to test Employees for intoxicants. Employers may carry out drug and alcohol testing only where it has been provided for in either the contract of employment, the Employment Policies and Procedures such as the Employee Handbook, or with the Employee’s express consent. Where the Employee is consenting to the testing, the Organisation must notify the Employee in advance of the testing occurring, the extent of the testing which is to be carried out, and potential implications should there be a positive result received.
An Employee, while at work according to Section 13 (1) (b) of the Safety, Health and Welfare at Work Act 2550, is obliged to ensure that he or she is not under the influence of an intoxicant to the extent that he or she is in such a state as to endanger his or her own safety, health or welfare at work or that of any other person present.
Should an Organisation’s risk assessment identify intoxication as a hazard in the workplace, it may be addressed within the Organisation’s safety statement. Should an Employee arrive at work and be under the influence of an intoxicant, the question that must be asked is whether there is a risk posed by the Employee’s intoxication. For example, if an Employee drives machinery in the course of their employment, the Employer is under an obligation to remove the person from any potential risk which being under the influence of an intoxicant may pose. During the month of December and the Christmas season, Employees may be attending an increased level of social events, and as such may be potentially more likely to arrive at work under the influence of an intoxicant, whether it is alcohol, drugs, or even medication. Where an Employee is not carrying out a role that is safety critical, an Employer must still be confident that the Employee is not a risk to himself or herself, or other Employees. If an Employer feels that this person is a risk, then there should be action taken to remove him or her from the risk.
An Organisation should have a clear and detailed drug and alcohol / intoxicant testing policy in place should this testing be required in the Organisation. Such a policy should include details in relation to intoxicants in the workplace, how an instance where there is a positive case of intoxicant will be dealt with, and the possible consequences of testing positive for such an intoxicant, that this may be considered to be gross misconduct, and will have consequences up to and including dismissal. Like all other policies, this policy should be very clearly worded and easy to comprehend. Organisations should carefully consider whether there is a need to carry out such testing, as the third party forums may not look favourably on random testing of Employees just on a whim. Testing can be viewed upon more favourably in safety critical industries, where being under the influence of such an intoxicant may have a huge and detrimental impact.
Case Summary 1 – Employee Fairly Dismissed following Consumption of Alcohol in the Workplace (UD43 - Marcin Kotaba v OFM Onsite Facilities Management Limited)
The Respondent provided facility management services to various clients. The Claimant was employed as a General Operative. Alcohol was prohibited in these centres. A policy of zero tolerance for alcohol on the premises was in operation and part of the Claimant’s job was to enforce this policy and confiscate alcohol from residents when discovered.
An investigation was carried out into an allegation that the Claimant had consumed alcohol in a resident’s room. The claimant freely admitted that he had accepted and consumed a beer in a resident’s room while watching a football match.
A disciplinary meeting took place and the Claimant was dismissed in September 2012. At the hearing, the Respondent advised the Employment Appeals Tribunal that they had no option but to dismiss the claimant on the basis that it represented a breach of policy and was considered to be gross misconduct.
The Claimant claimed that he was not aware of the zero tolerance policy in relation to having alcohol on the premises even though he accepted that he had signed policy documents concerning this.
After hearing all of the evidence, the Tribunal found in favour of the Respondent and the claim of unfair dismissal failed. In determination of this decision, the Tribunal referred to the explicit zero tolerance policy by the Respondent of having no alcohol on the premises and the investigation which had been undertaken.
This case illustrates the importance of having clear and consistent written policies and procedures in place, which have been effectively communicated and written agreement obtained from Employees confirming their adherence and the possible consequences in the event of a failure to do so. This proved critical in enabling the Employer to successfully defend the Unfair Dismissal Claim.
Case 2 – €20,000 award for being intoxicated at work. (UD823 – Employee v Employer)
The owner of the Respondent Organisation (PS) submitted that that he received a telephone call informing him that the Claimant was drunk while working on a machine. PS asked for the opinion of the people reporting the incident to clarify if the Claimant was intoxicated in work. At a meeting between PS and the Manager it was decided that the Claimant had to be dismissed. At the time of the dismissal, no grievance or disciplinary procedures existed.
In cross examination at the hearing, PS advised he was reliant on who witnessed the condition of the Claimant. He confirmed the Claimant had not been breathalysed or examined. PS further advised that the Quarry Manager had previously spoken to the Claimant and had verbally warned him about drinking. The Respondents Financial Controller was on a course that day and was contacted for her advice. She advised that the claimant be brought home. The Claimant denied that he was drunk on the machine though he admitted that he may have had a few drinks on the previous night.
The Tribunal found in favour of the Claimant and awarded the sum of €20,000.00 in compensation. The Tribunal found the decision to dismiss to be unfair in circumstances where the Respondent made no effort to satisfy himself that gross misconduct had been committed and failed to follow a fair procedure in conducting an investigation.
There have been numerous cases where Organisations have not followed procedures and as a result end up in the Employment Appeals Tribunal or other Employee redress forum paying out an award simply due to the fact that they didn’t follow their own internal / fair or indeed any procedures. Even in a dismissal case, where an Employer is entirely justified in making a decision to dismiss, an order for an award in the Employee’s favour in a situation can be made where procedures were not adhered to, which is not an ideal scenario for any Organisation to find themselves in, at any time.
There is no statutory requirement for Employees to undergo testing in relation to being under the influence of intoxicants; similarly there is no requirement for Employers to test Employees for intoxicants. Employers may carry out drug and alcohol testing only where it has been provided for in either the contract of employment, the Employment Policies and Procedures such as the Employee Handbook, or with the Employee’s express consent. Where the Employee is consenting to the testing, the Organisation must notify the Employee in advance of the testing occurring, the extent of the testing which is to be carried out, and potential implications should there be a positive result received.
An Employee, while at work according to Section 13 (1) (b) of the Safety, Health and Welfare at Work Act 2550, is obliged to ensure that he or she is not under the influence of an intoxicant to the extent that he or she is in such a state as to endanger his or her own safety, health or welfare at work or that of any other person present.
Should an Organisation’s risk assessment identify intoxication as a hazard in the workplace, it may be addressed within the Organisation’s safety statement. Should an Employee arrive at work and be under the influence of an intoxicant, the question that must be asked is whether there is a risk posed by the Employee’s intoxication. For example, if an Employee drives machinery in the course of their employment, the Employer is under an obligation to remove the person from any potential risk which being under the influence of an intoxicant may pose. During the month of December and the Christmas season, Employees may be attending an increased level of social events, and as such may be potentially more likely to arrive at work under the influence of an intoxicant, whether it is alcohol, drugs, or even medication. Where an Employee is not carrying out a role that is safety critical, an Employer must still be confident that the Employee is not a risk to himself or herself, or other Employees. If an Employer feels that this person is a risk, then there should be action taken to remove him or her from the risk.
An Organisation should have a clear and detailed drug and alcohol / intoxicant testing policy in place should this testing be required in the Organisation. Such a policy should include details in relation to intoxicants in the workplace, how an instance where there is a positive case of intoxicant will be dealt with, and the possible consequences of testing positive for such an intoxicant, that this may be considered to be gross misconduct, and will have consequences up to and including dismissal. Like all other policies, this policy should be very clearly worded and easy to comprehend. Organisations should carefully consider whether there is a need to carry out such testing, as the third party forums may not look favourably on random testing of Employees just on a whim. Testing can be viewed upon more favourably in safety critical industries, where being under the influence of such an intoxicant may have a huge and detrimental impact.
Case Summary 1 – Employee Fairly Dismissed following Consumption of Alcohol in the Workplace (UD43 - Marcin Kotaba v OFM Onsite Facilities Management Limited)
The Respondent provided facility management services to various clients. The Claimant was employed as a General Operative. Alcohol was prohibited in these centres. A policy of zero tolerance for alcohol on the premises was in operation and part of the Claimant’s job was to enforce this policy and confiscate alcohol from residents when discovered.
An investigation was carried out into an allegation that the Claimant had consumed alcohol in a resident’s room. The claimant freely admitted that he had accepted and consumed a beer in a resident’s room while watching a football match.
A disciplinary meeting took place and the Claimant was dismissed in September 2012. At the hearing, the Respondent advised the Employment Appeals Tribunal that they had no option but to dismiss the claimant on the basis that it represented a breach of policy and was considered to be gross misconduct.
The Claimant claimed that he was not aware of the zero tolerance policy in relation to having alcohol on the premises even though he accepted that he had signed policy documents concerning this.
After hearing all of the evidence, the Tribunal found in favour of the Respondent and the claim of unfair dismissal failed. In determination of this decision, the Tribunal referred to the explicit zero tolerance policy by the Respondent of having no alcohol on the premises and the investigation which had been undertaken.
This case illustrates the importance of having clear and consistent written policies and procedures in place, which have been effectively communicated and written agreement obtained from Employees confirming their adherence and the possible consequences in the event of a failure to do so. This proved critical in enabling the Employer to successfully defend the Unfair Dismissal Claim.
Case 2 – €20,000 award for being intoxicated at work. (UD823 – Employee v Employer)
The owner of the Respondent Organisation (PS) submitted that that he received a telephone call informing him that the Claimant was drunk while working on a machine. PS asked for the opinion of the people reporting the incident to clarify if the Claimant was intoxicated in work. At a meeting between PS and the Manager it was decided that the Claimant had to be dismissed. At the time of the dismissal, no grievance or disciplinary procedures existed.
In cross examination at the hearing, PS advised he was reliant on who witnessed the condition of the Claimant. He confirmed the Claimant had not been breathalysed or examined. PS further advised that the Quarry Manager had previously spoken to the Claimant and had verbally warned him about drinking. The Respondents Financial Controller was on a course that day and was contacted for her advice. She advised that the claimant be brought home. The Claimant denied that he was drunk on the machine though he admitted that he may have had a few drinks on the previous night.
The Tribunal found in favour of the Claimant and awarded the sum of €20,000.00 in compensation. The Tribunal found the decision to dismiss to be unfair in circumstances where the Respondent made no effort to satisfy himself that gross misconduct had been committed and failed to follow a fair procedure in conducting an investigation.
There have been numerous cases where Organisations have not followed procedures and as a result end up in the Employment Appeals Tribunal or other Employee redress forum paying out an award simply due to the fact that they didn’t follow their own internal / fair or indeed any procedures. Even in a dismissal case, where an Employer is entirely justified in making a decision to dismiss, an order for an award in the Employee’s favour in a situation can be made where procedures were not adhered to, which is not an ideal scenario for any Organisation to find themselves in, at any time.
