Can I be drunk at work? And if not, how can they tell?

Workplaces are less tolerant of drinking, but it is hard to prove an employee is intoxicated

There is no legal requirement for employers to test  for intoxicants – or for employees to submit to such tests. Photograph: Getty Images

There is no legal requirement for employers to test for intoxicants – or for employees to submit to such tests. Photograph: Getty Images

 

Lloyds of London has just banned its employees from drinking at lunchtime, and in the courts an Irish Rail employee is challenging her dismissal for failing a random Breathalyser test.

Once, workplaces were awash with drink. Executives had drinks cabinets in their offices, hard-bitten cops had bottles of scotch on their desk, and newsrooms had sheets on the wall featuring the phone numbers of the pubs their correspondents drank in. My counterpart in the 1980s might have been at least slightly tipsy writing this article.

There are legal considerations these days, says Kieran Sludds, an occupational health manager at the Health and Safety Authority. “In the 1989 Safety Health and Welfare at Work Act, I don’t think there were any references to intoxicants,” he says. “But in the 2005 Act [which replaced it] there are both explicit and implicit references.

“There’s nothing in the Act that explicitly says the employer must manage intoxicants in the workplace. But it does say that the employer must manage the health and safety and welfare of employees and create a safe place to work.”

It also says “the employer must manage activities to prevent improper conduct or behaviour . . . If people are going around half twisted due to drink or drugs or both, that would be deemed improper conduct or behaviour.”

The explicit reference to intoxicants in the Act comes in a section about an employee’s duties, says Sludds. Here it says an employee at work must “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 health and safety at work or that of any other person”.

Is proving someone is intoxicated to the extent they are a danger difficult? “Very,” says Sludds. “I would advocate that most employers should have a policy on intoxicants. That gives you the steps to deal with it.”

Do all companies have such a policy? “The big companies do,” he says. “A lot of the small to medium enterprises do not.”

Blue-collar testing

Richard Grogan, principal at Richard Grogan and Associates Solicitors, which specialises in employment law, says intoxication in the workplace is an increasingly important issue.

“More often than not [the cases they see] involve blue-collar workers who use heavy machinery of some kind,” he says. “In the case of white-collar workers, the first time that it is noticed is often the last time it will ever arise, because they get a warning and they cease. Cases rarely go for full hearing if the procedures are properly followed.”

Grogan also emphasises the importance of clear intoxicant policies that outline disciplinary consequences, as well as the company’s duty of care towards an employee in addiction. He says drug testing is appropriate for certain companies.

“It’s common sense. Companies reserve the right to check your internet or mobile phone. If you work in a jeweller shop, they’ll have a clause that allows them to search you, including your bags. This is no different.”

Without testing, intoxication is harder to prove, says Grogan. “It would be like a guard prosecuting someone for drunk driving who hasn’t done a breath test or urine or blood sample.”

Sludds notes that testing has been “a contentious issue”. Though there is a clause in the Act allowing regulations to be created for drug and alcohol testing in the workplace, no such regulations yet exist. And many private sector employers have baulked at the idea of being forced to implement testing: done correctly, it can be costly.

Scheduled tests

So, as things stand, there’s no legal requirement for employers to test their employees for intoxicants – or for employees to submit to such tests.

Nonetheless, increasing numbers of companies do carry out both scheduled and randomised tests for drugs and alcohol, particularly, says Grogan, in “white-collar service industries and blue-collar jobs where there are health and safety issues”. If workers have signed contracts agreeing to tests and a company policy outlines clear procedures and consequences, it would be difficult to fight in a court.

Unions such as the National Bus and Rail Union (NBRU) once resisted drug testing but have since changed their positions. Five per cent of Irish Rail workers are currently subject to randomised testing as a condition of the Railway Safety Act. Last year Dublin Bus drivers agreed to negotiate a drugs and alcohol testing regime as part of pay negotiations.

NBRU general secretary Dermot O’Leary says it’s important that such tests become a requirement across the sector, not just for State employees, and that workers on medication for health reasons be fully protected. Otherwise, he accepts the need for such measures.

“Society has moved on and we’ve moved on too,” O’Leary says. “We recognise there has to be a regime in place to protect passengers and workers in the union. You have to realise the realities of the society you live in.”

Maeve McElwee, Ibec’s director of industrial and employment relations, says that drug testing is “not creeping in as a norm” beyond “safety-critical” industries and that companies usually take a nuanced approach to the issue.

Still, the culture has clearly changed. “I would be of the view that it is perfectly legitimate for an employer to say to people: ‘Do not drink during the working day’,” says Grogan. He recalls an era of boozy business lunches, and laughs.

“Now you have business breakfasts and the strongest thing you’re going to have is a latte.”

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