Employees attending for work under the influence/in possession of intoxicants

It is important that as an employer, you are clear as to what your obligations are if an employee attends for work under the influence of drugs or alcohol, commonly referred to as Intoxicants, or if an employee is in possession of drugs or alcohol in the workplace and/or is consuming same. To note, intoxicants can also include medically prescribed medications which may impair or affect an employee’s ability to carry out their work duties as normal.

A particular WRC Case heard in 2023, in which an employee was unsuccessful in their Unfair Dismissal claim against their employer, serves as a useful guide for employers in how matters relating to Intoxicants in the workplace should be handled.

In the case, A worker v A Food Preparation Company, an employee was found to have drug paraphernalia in his possession while at work – with additional allegations by co-workers of consuming said drugs at work – and was subsequently dismissed by his employer. In rejecting the Unfair Dismissal claim, the Adjudication Officer took the below factors into consideration:

  • The employer had conducted a thorough investigation in line with its own disciplinary procedures. The employee was interviewed, and he was afforded the right of representation at all stages and he was given the opportunity to appeal the decision.
  • Additionally, five separate witnesses were met with who gave statements as to the employee’s drug possession and consumption.
  • The company had a clear drugs and alcohol policy in place which included a “Zero Tolerance” approach towards Intoxicants in the workplace. Furthermore, this policy gave the employer the right to search the employee’s property in connection with alleged drug possession on-site (which led to the discovery of said paraphernalia) and to refer the matter to the disciplinary procedure if an employee was found in possession of same. The claimant in this case was fully aware of this policy from it’s commencement in 2022.
  • The Adjudication Officer determined that the employer had made it absolutely clear to all staff that there was a Zero Tolerance policy towards intoxicants in the workplace, and that fair procedures were followed at all times during the address of this intoxicants discovery.
  • It should also be taken into account that, while the Adjudicator noted that in a “Zero Tolerance Culture” the employee’s dismissal may have seemed somewhat harsh, it was within the Band of Reasonableness for any employer faced with a serious illegal drug situation such as this.

To conclude, from the above case, it is clear that, while in some circumstances it may seem extreme to have such a severe policy in place, it is clear and comprehensive policies such as this that help to maintain the health and safety of those employees working as part of the business, as well as allowing the employer to ensure that all intoxicants issues are properly addressed. In addition, each case should be assessed on its own particular set of facts to decide what sanction is appropriate in the circumstances. Factors such as risk to safety, the level of responsibility, if the employee has contact with the public should be taken into account in deciding whether or not the penalty of dismissal is a reasonable and proportionate response in the situation.

In light of the above and in the interest of your Company, The HR Company have partnered with a Company who provide on-site alcohol and drugs testing for a reasonable fee, and the ‘Drugs and Alcohol Testing Policy’ in our Employee Handbook allows you the option to have an employee tested based on a reasonable suspicion that the employee is under the influence of unauthorised prescriptive drugs, illegal drugs, controlled substances, and/or alcohol.

If this is something you are interested in, please complete the below form for more details.