Slurred words, dilated pupils or a disposition for spontaneously hugging shift colleagues and declaring: 'you're my best mate ever'. The signs of alcohol or drugs abuse in the workplace range from the subtle to the glaringly obvious. And unless you act on the signs of misuse fast, your factory could be facing the hangover from hell.
"The main duty of care is on the employer; the responsibility always rolls up top," says Stephen Thomas, health and safety technical consultant at legal firm Wolters Kluwer, on the court's interpretation of accident accountability where alcohol or drugs are a factor under the Health and Safety at Work Act.
"A company can't control what an employee does outside of work, but [the court] will look at what policies companies have in place to deal with people who are not fit to work and how they've managed that. They will also look at company culture."
A word of warning before you reach for the Quaker hat. Successfully tackling substance misuse begins with an objective look at the risks as part of an alcohol and drugs policy (see box), not a fire and brimstone sermon outside the factory canteen.
"It's especially important to develop a policy within the manufacturing industry," says Louise Barnes, senior employment consultant at Wolters Kluwer. "Not least because of the use of heavy machinery and driving of forklift trucks and other vehicles. If you are driving under the influence of any substance, you are putting yourself and others at risk."
Your bid to create an alcohol and drugs policy should begin by establishing the scale of the problem on your site, according to HSE. Assess whether employees regularly drink during work hours or binge the night before a shift. Then crosscheck your findings against sickness absence records, accident records and productivity.
If alarm bells ring then take the bull by the horns in the policy, Barnes advises. "It's absolutely fine to say anyone who operates heavy machinery or drives any form of vehicle is not to consume more than five units the day before their shift," she explains. "The difficulty is enforcement because work time is one thing and social time is another. You will never know the truth about how much someone has consumed unless you are going to see that through with some form of testing."
One site that's encountered the dilemma is Fujifilm, Broadstairs. "I would like testing – it would make things cut and dried," says Colin Boughton, European operations director at the plant. "But how do you do it? Do you routinely test people, or do it randomly? If you're using a breathalyser kit then there are issues around training and calibration. It also risks upsetting a lot of good people to find the one bad one."
Fujifilm opts instead for an alcohol and drugs policy guided by management discretion. The policy states that drinking to an 'unreasonable' level will trigger disciplinary action. Unreasonable is defined as being over the legal driving limit, or if, in a manager's opinion, an employee's performance is impaired.
The policy was last put to the test around 15 years ago, explains Boughton. Two employees were reported as displaying signs of being under the influence of alcohol by displaying signs of being under the influence of alcohol by shift colleagues. The duo were pulled aside by a supervisor and immediately questioned in the presence of a union official, recalls Boughton. "One of our first questions was: do you have a drug or alcohol problem? In our opinion you're under the influence." Had either admitted to an alcohol problem at that point then Fujifilm, in-line with recommended guidelines, would have taken a more supportive stance. The employees would have had to take full responsibility for dealing with their addiction problem with support from the company.
By issuing a denial, the duo took proceedings down a less sympathetic route. "We took them through gross misconduct," recalls Boughton. "One guy was sent home, but was so far out of his skull he turned up back at the factory. The other guy lived at home and we spoke to his mum as part of the investigation. She told us: 'I know he has a drink, but he tells me it's only shandy'. I thought: 'well if that's shandy, I wouldn't mind a few pints of that next time I'm out."
No breathalyser or blood test was required. You'll be surprised what you can uncover with a switched on management team, says Boughton. "The shopfloor knows. Listen out for the rumours: 'watch out for so and so, what does his breath smell like today?'"
But, detecting drug abuse is far more difficult, reflects Boughton. "The incidents I'm referring to were 15 years ago and I think the whole culture around drinking has changed. Our potential issue now is drugs. We have an ageing workforce, but if you're employing younger people then the risks are higher. You can't just smell drugs on someone's breath."
Drugs use can surface in other ways though. One anonymous site manager revealed how he made an unlikely discovery via the gents' loo. "The cleaner discovered a set of footprints on the toilet seat and I thought that was pretty odd," he recalls. "I decided to investigate and when I stood where the footprints were and reached up I found one of the roof panels above the cubicle was loose. I lifted it up and discovered a bong and a cannabis bag on the roof." The manager announced the discovery to the site and a pair of twenty-something temps didn't return the next day.
Not all drug discoveries are as illicit or end as amicably. "Another case we had was a forklift driver who smashed a big hole in the wall while taking painkillers," says Boughton. Fujifilm's drugs policy requires all employees to declare if they're taking any prescription drugs. The driver failed to do so and was dismissed for a serious safety breach following on from a string of previous incidents that resulted in warnings and retraining.
The case went to tribunal for unfair dismissal, explains Boughton. "The driver claimed he'd had to dose up on painkillers to cope with his workload. Fujifilm said: 'you need to tell us'", recalls Boughton. "If we'd known the issues he was having then we would have adjusted the role." The driver claimed total amnesia over the crash that left a forklift truck-shaped hole in the factory wall. And it was only when Fujifilm's solicitor delivered a piece of cross examination straight out of the pages of a John Grisham thriller that the case turned. "Our solicitor asked me for a map of the warehouse and we stuck it to a big board in the tribunal," says Boughton. "He said: 'so Mr X, at the time of the accident you were going down D rack and then turned. He interrupted the solicitor and said: 'no, no I was in F rack'. The solicitor replied: 'But, I thought you were disorientated and didn't know where you were?'"
Taking steps to identify prescription drugs alongside illegal ones on a policy is recommended by Pat Hicks senior adviser at Acas. "It's quite reasonable for the employer to say: 'if it's a safety critical role we need to know about anything you are taking that may impair your performance'," she says. "If you don't declare then it's a disciplinary offence."
Backing words up with active drug testing would remove any doubt. However, you should be wary of using a sledgehammer to crack a nut, she advises. "It's easier for employers to assume if people have nothing to hide then they've got nothing to object to. You can be innocent, teetotal, never taken a drug in your life and still resent the idea of a blood test because of the personal, intrusive nature of testing."
The final decision should come down to your initial risk assessment on the scale of the problem at your plant, according to Hicks. Even if you do decide to proceed with testing then tread with care, she advises. "If you say you're introducing responsive testing [targeting a group of employees where a problem has been identified] then people will generally say: 'If I haven't done anything then there will be no need for anyone to test me'. Random testing creates more agitation. And you can't say: 'I know it's random, but please test Bob'. Include everyone."
And finally, whether you test or not, remember that success- as with any change programme- is about engaging your workforce not measuring alcohol levels down to the last mg. Hicks concludes. "Employees are uncomfortable with change," she says. "Don't underestimate how beneficial talking to a trade union or employee representatives can be in terms of helping employees address these issues. Engaging in this early conversation should ensure a smooth path for your policy." ¦
Useful links:
Receive expert advice on developing an alcohol and drugs policy at the WM Factory Safety and Maintenance Conference on 3 June.
Book now at www.safe-maintenance.co.uk
Your essential guide to establishing an alcohol and drugs policy
Where do I begin? Make a candid assessment of drink or drug issues on site. Hicks of Acas says: "In headline terms, a policy should address: why are we doing this? What risks do we perceive? What testing regime, if any, do we have in place? And what will we do if we find you've broken the rules?"
Carrot or stick? Include both, according to the legal experts. All policies should link a breach of rules to the company's disciplinary procedure through gross misconduct. But you should also offer an olive branch of support to employees who come forward with drink or drugs problems. You must make an attempt to help anyone you suspect of substance misuse or risk an unfair dismissal claim.
Can the policy be applied away from the factory? Yes. The policy applies wherever there is a direct link between employee and employer. For example, a worker in company uniform found drunk and disorderly at the dog and duck could find him or herself facing a gross misconduct charge for bringing the company into disrepute. Business functions apply too, which should sober up the disgruntled operator who launches a tequila-fuelled tirade at every Christmas party. "Our phone lines are very busy in January," says Hicks.
Should I consult with the workforce first? Absolutely. A preliminary discussion with workers will significantly boost the chances of successfully implementing the policy, says Hicks. "Go to your trade union or employee representative body and say: 'This is where we perceive a risk. We need to put something in place. Let's have a conversation about it.'" The introduction of a policy will need approval from employees in a unionised workplace or where you have collective agreements in place, says Barnes of Wolters Kluwer.
Should I include testing? The million-dollar question. The pros of testing or screening employees include clear evidence of drug or alcohol consumption. But it's not a cure-all. Testing generates admin burden and cost by bringing in a third party testing provider. You also risk riling the workforce who may perceive testing, particularly random, as intrusive and overly controlling.
Another curveball to consider is your response when an employee refuses to test (testing can only take place with a worker's consent). Chasing employees round the office with a syringe could have you facing assault and battery charges, warns Barnes. Refusals should be categorised in your policy as carrying the same inference as a positive result, she adds. That still leaves you with the possibility of dealing with an employee who refuses to test, but shows no other signs of substance abuse.
How do I discipline someone I suspect without testing? Employment tribunals operate under civil law, stresses Barnes. You must prove on the balance of probability that you had a genuine, honest and reasonable belief the employee was under the influence. Employers should carry out a full investigation in line with their gross misconduct procedures, she says. Seek witness statements supporting your observations and act proportionality, urges Barnes. "You should take into account mitigating factors: length of service, a clean disciplinary record. But, ultimately, on the balance of all of those things, if the employer holds a 51% belief in a person's guilt, they can safely rely on a dismissal."
