Different legal procedures apply when handling workplace problems arising from misconduct on the one hand, or from an employee’s health problems on the other. Misconduct is treated more harshly, whereas ill health is regarded as a misfortune that befalls the employee through no fault of their own.
Problems can arise when an employee drinks alcohol or consumes drugs on the job, or arrives at work in a state of intoxication, or misses work altogether on account of having been on a drinking or drug binge. Most employers would regard any of these scenarios as being cases of misconduct, and they might be. However our law recognises that alcohol or drug dependency is an illness, and requires employers to treat true dependency as an illness and not misconduct. The involvement of alcohol or drugs in a workplace problem doesn’t automatically make the matter one of misconduct or of ill health. Each case must be handled on its own merits.
Where an employee suffers from a dependency problem, the ill health procedure is appropriate. The employer is expected to go to greater lengths to accommodate and assist the employee, given that the matter doesn’t concern fault, as such. Counselling is necessary and the employee may require assistance to access rehabilitation. However, if the employee simply abused alcohol or drugs – and thereby contravened a workplace rule, with fault and without dependency playing a role – the misconduct procedure would be appropriate, and a disciplinary hearing should be held.
Where an employee claims to suffer from a dependency problem, the employer should assess this, to determine whether to treat the matter as one of ill health or misconduct. However where an employee expressly denies having a dependency problem, recent judgments suggest that the employer need not take the enquiry further, but may safely default to the misconduct procedure.