“I am the Human Resources Manager in a manufacturing business and I have been asked by one of the Operation Managers to dismiss an employee as he alleges the employee arrived for work under the influence of drugs. The employee has been suspended: he is still under his probationary period. How should I handle this?”
I suggest you establish the full facts surrounding the employee’s attendance at work and why the Operation Manager believes that he arrived under the influence of drugs. You should consider if there is information available which establishes the grounds leading the Manager to this view? Are there any other witnesses who might provide some information around the exact circumstances?
It is also important to review the Company’s policies to establish whether any action already taken complies with the Company’s Disciplinary Policy/Procedure and any Drugs and Alcohol Policy, if applicable.
If you do not have a Drugs and Alcohol Policy, you should treat this matter in accordance with the terms of the Company’s Disciplinary Policy. The absence of a Drugs and Alcohol Policy might mean that the Company is powerless to carry out any drug testing of the individual as it is not possible to unilaterally impose this requirement that an employee agrees to a drug test, without a corresponding contractual obligation. In any event, it may be that the ability to properly test the employee for drugs has now passed, considering the passage of time since the incident.
Therefore, in relation to the queries surrounding possible dismissal, in the absence of a written Drugs and Alcohol Policy, I would suggest you proceed with an investigation, as you would with any other allegation of misconduct, complying with the provisions of your Disciplinary Policy and ensuring that there is a full investigation into the matter. You should avoid pressure from the Operations Manager to discipline or dismiss this particular employee in the absence of satisfactory evidence confirming that the employee was indeed under the influence of drugs.
You have also indicated that the employee is still subject to a probationary period. This would suggest that he does not have one year’s service and may not yet have acquired service based unfair dismissal rights. If the investigation and disciplinary process continues and whilst misconduct is established, there are mitigating circumstances, it may be that the disciplinary sanction falls short of dismissal. Again, it would be necessary to examine the terms of the Company Disciplinary Policy to determine what sanction is appropriate. In these circumstances, it could be that you wish to extend his probationary period and, in the absence of the employee’s consent, before doing so, you should review the terms of his contract to ensure the Company can do so.
Alternatively, you may wish to terminate the employment during the probationary period due to the severity of the misconduct. If that is a course of action you wish to consider, even if the individual does not have a year’s service entitling him to unfair dismissal rights, I would recommend that you still carry out a fair investigation and disciplinary process, with a right of appeal as appropriate. This will demonstrate you have acted fairly and could help to defeat any allegation of discrimination that the employee may raise in relation to his treatment by the Company.
I would also suggest you consider implementing a Drugs and Alcohol Policy to cover eventualities of this kind, if the Company does not have an existing policy.
The main content of this email was provided by Patricia Rooney of Tughans Solicitors in Belfast. Patricia works exclusively in Employment Law and should anyone have any queries she may be contacted on:-
Patricia.Rooney@tughans.com
028 9055 3300 Website: www.tughans.com
While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.
