
For January 2020, we have asked the employment team at Tughans to provide practical answers to unusual, sensitive or complex work-related queries. We call this feature “How do I handle it?”
The articles are aimed at HR professionals and other managers who may need to deal from time to time with the less common place disputes at work; issues that may, if handled incorrectly, lead to claims of discrimination or constructive dismissal or some other serious difficulty.
I am an HR Manager at a large organisation and have received an anonymous complaint about one of our employees using recreational drugs at work. The employee is office based. How do I handle it?
I suggest that your starting point should be the complaint itself, and who it was made by. If you believe the complainant is an employee, it is preferable that they come forward, allowing you to hold a full investigation. You should consider if the complainant can be encouraged to do so. The main issue with an anonymous complaint is that your ability to assess either its veracity or the motivations behind it are greatly reduced. Anonymous complaints suggest a greater risk of malicious or false accusations, and you should proceed with more than the usual caution.
That is not to say that you shouldn’t do anything. Drug misuse can be a serious issue in the workspace for a number of reasons. There are clear implications for your duty of care as an employer to safeguard employee health and wellbeing at work. An employee who is abusing drugs at work may be a danger to themselves and others. This would be especially important if the employee operates machinery or has to undertake driving duties; in those circumstances, you should consider immediate action, including whether suspension is appropriate given the particular circumstances of the employee’s role.
Secondly, use of recreational drugs at work is a serious conduct issue which will almost certainly constitute serious or gross misconduct under your disciplinary policy. You might also decide to treat the use of recreational drugs as a medical issue, especially if you have a substance misuse policy in place. The most appropriate option will depend greatly on factors such as the nature of the role, the employee’s performance and conduct record, and the exact circumstances, including the employee’s mental health. Given the myriad situations in which potential drug misuse could occur, a careful investigation will be a necessary prerequisite to beginning a disciplinary or support-based process. You should take action promptly, as drug misuse could quickly escalate to further conduct or performance issues.
If you think the complaint is from a customer or client, there is an obvious reputational damage issue to consider, and depending on the circumstances, it may be more difficult to properly investigate.
The first practical step will be to inform the subject of the complaint that an anonymous complaint has been received, which you will have to investigate. You should invite the employee to a meeting to discuss the allegation. This would be equivalent to an investigation meeting, so the employee will not have a statutory right to accompaniment, although your internal policies may provide this entitlement.
Depending on the circumstances, the other aspects of your investigation might be relatively straightforward. If CCTV is available and can be used in compliance with your data protection obligations, it could very quickly prove or disprove the allegations. There may be witnesses who can readily verify the complaint; this is especially likely if the alleged drug use occurred at a social event or in a communal area. As the complaint is anonymous, you should take special care not to simply accept that drug use has occurred, even if another employee claims to have witnessed it. You should be mindful of the possibility that the complaint is malicious. You should give some weight to the complaint being anonymous when considering whether you are satisfied that it forms grounds for further action; the complainant’s anonymity may greatly reduce the alleged drug user’s ability to refute the allegations.
When you speak to the alleged drug user, they may simply admit to the misuse. However, they may deny the allegation or offer an alternative explanation, such as a medical usage. If this happens, you will need to carefully consider whether the other evidence available to you is enough to reach conclusions which you can rely upon. If you have a policy on drug testing, you will need to consider whether it can be applied. You may also need to consider if there are underlying health issues which you should take into account. If there is not enough evidence, you may not be able to proceed. I would not recommend that you proceed to disciplinary proceedings on the basis of the anonymous accusation alone.
On the other hand, if you find that the anonymous accusation is false and can identify the accuser following your investigation, this could form grounds for separate disciplinary action against the accuser. Clearly, this is a situation which requires a sensitive and cautious investigation. If you establish that drug use has occurred, you will need to consider which of your policies are engaged and whether it should be treated as a disciplinary or medical issue.
The main content of this article was provided by Jack Balmer of Tughans in Belfast. Jack works exclusively in employment law and should anyone have any queries he may be contacted at:
028 9055 3300 Website: www.tughans.com
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