Intoxicants in the Workplace

Under the Safety, Health and Welfare at Work Act 2005 the term intoxicant is defined as including drugs or alcohol or a combination of both. It therefore includes both prescribed and non-prescribed drugs. The Employer has many obligations under this legislation, including the responsibility to manage and conduct work activities in such a way as to prevent, so far as is reasonably practicable, any improper conduct or behaviour likely to put the safety, health or welfare at work of his or her employees at risk.

Employees also have an obligation under the legalisation, 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.

Occasionally employers will have to deal with an employee who presents for work in an inebriated condition or, at least, is suspected to be in such a state. While alcohol is more easily identifiable, other forms of intoxicants may be more difficult to discern. In addition, the law, as it stands, does not explicitly ban intoxicants in all circumstances, but makes it an offence for an individual to be under the influence of an intoxicant to such an extent as would make it unsafe for them to work or create an unsafe situation affecting others at the place of work. This means that in most cases it will be a matter of judgement.

If you as a manager or supervisor consider an employee to be unsafe for whatever reason, it is essential that you:

1. Do not permit the employee to commence work until such time as they are satisfied the person is in a fit state to do so. This may mean confronting the person about whom they have a concern.
   
   
2. If considered necessary to send them home, transport should be arranged. They should not be permitted to drive themselves.
   
   
3. Recurring incidents, involving breach of this policy by the same individual should invoke more serious disciplinary action.

In the case of repeated incidents, it is important that employers know that Alcoholism is recognized as a disability for the purpose of the Employment Equality Acts. Alcoholism and drug addiction can be responsive to proper treatment and, as such, employees suffering from a disability will not be discriminated against on the basis of their illness. Employees who have an alcohol or drug addiction should be actively encouraged to avail of professional assistance and given the opportunity to do something positive about their problem. However, should an employee fail to continue with treat present for work under the influence of an intoxicant they should be subject to disciplinary action up to and including dismissal where appropriate.

However, such disciplinary action should be conducted in a procedurally fair manner. This is clear in the 2017 case taken by a Luas Driver against his employer. In this case the WRC ordered that the Luas driver be reinstated to his job following his dismissal as a result of being at the tram depot while under the influence of alcohol. The complainant in the case advised that he was embarrassed after admitting he was drinking all weekend before going to the Red Cow Luas depot where he was scheduled to work that morning. The complainant claimed he arrived at the depot to collect a number of personal items and did not have the intention of driving the tram. He advised that he admitted to his team leader that he had been drinking the previous evening. The team leader in question claims that the complainant was there to work and he detected a smell of alcohol from him. At which point he allegedly advised the complainant that he would be subject to a test for the presence of alcohol, which the complainant failed twice. As a result of failing these tests the complainant was accused of being in breach of the company’s drugs and alcohol policy (intoxicants policy) and was subsequently dismissed. At the hearing the complainant advised he had not found another job since the dismissal and was unlikely to due to his age.

There were a number of matters identified throughout the course of the hearing which support the complainants claim that he was at the depot to simply collect some personal items. These include the fact that he was not wearing his uniform; did not have a uniform in his locker; needed glasses for work and didn’t have them on that date; did not have his tram key; and never made any attempt to make his way up to the control room to sign on. While the facts against the driver were that he often came to work in a track suit; was present at the exact time he would have been had he been coming to work and he had not called in to say he would not be attending. In her ruling, the Adjudicator concluded that on the balance of probabilities she preferred the complainant’s evidence. He had no history of breaching the drugs and alcohol policy in his 13 years with the Company and his explanation was a credible one. The Adjudicator found that the employer’s investigation and disciplinary process was flawed to the extent that it prejudiced the employee and was in breach of the principles of natural justice.

This case highlights the importance of having both an intoxicants and a disciplinary policy in place and following the correct procedure in relation to both. For more information on any of the above please contact The HR Suite on 066 7102887 or email on info@thehrsuite.com