Whilst the case in question related to advertising regulations in food supplements as opposed to employment law, it does throw up the question of how employers in the UK should deal with staff who attend work suffering the after effects of a few too many refreshments from the night before.

Should such behaviour be treated as misconduct, or does this case herald complexity in the future, if hangovers are to be treated as an illness?

The current position

The majority of employers in the UK will generally have policies in place that classify attendance at work under the influence of alcohol (including hangovers) as misconduct.  Indeed, in certain roles – such as those involving driving or the operation of heavy machinery – attending work hungover will likely amount to gross misconduct due to the significant health and safety impact. 

Even in non-safety critical roles, employees who are regularly under par at work due to excessive alcohol consumption are liable to be subject to misconduct, or even capability proceedings.  As ever, context will be key; there will be different levels of tolerance depending on the employer and the role being undertaken by the employee.  

Hangovers might be disabling, but are they a disability?

In the UK, an employee will be considered disabled under the Equality Act 2010 (or the equivalent applicable legislation in Northern Ireland) if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

In this context, "long term" means that the impairment has lasted – or is likely to last - for a period of 12 months or more.  Whilst hangovers may occasionally feel like they are lasting a lifetime, it is difficult to envisage how even the most raucous of nights out could result in a hangover that meets the statutory definition of disability.  

Whilst a hangover will therefore not amount to a disability, it is nevertheless worth considering the position of individuals who unfortunately find themselves being alcohol dependent.  Regulations enacted under the 2010 Equality Act confirm that addiction to alcohol is not a disability in itself (unless that addiction resulted from medically prescribed drugs), but that isn't necessarily the full story. 

Indeed, an employee may develop an impairment that amounts to a disability as a result of their alcoholism (for example, a serious liver condition due to levels of alcohol consumption).  It is also possible that alcoholism could be a symptom/consequence of a disability (for example, drinking heavily due to severe depression).  As such, if an employee appears to be suffering from alcohol dependency, employers would be wise to make further enquiries - including seeking occupational health advice if appropriate - to establish if the employee may be suffering from an underlying disability.

Managing alcohol related issues - top tips for employers

Review your contracts and policies

The introduction of a Drugs and Alcohol Misuse Policy can help to ensure consistent treatment of alcohol-related issues at work.  Employers would also be wise to consider whether provisions relating to random drug and alcohol testing – including the consequences of non-compliance – should be included in employment contracts.  Provisions relating to the right to search staff and their property may also be useful in this respect.

Ensure appropriate evidence is gathered and retained 

If an alcohol breath test is carried out, it would be wise to carry out this test in the presence of a witness for evidential purposes.  The reading on a breathalyser should also be recorded immediately for potential future evidential use.  If an employee refuses to take a test, it is not necessarily a barrier to taking action.  Employment Tribunals do not require criminal standards of proof and other forms of evidence (such as witness statements etc) could still potentially be used in disciplinary proceedings.

Act promptly if suspicions are raised

Through time, alcohol levels in an individual's body will decrease.  Working under the influence of alcohol could have serious health and safety implications.  If there are suspicions that an employee is under the influence, investigations should take place without delay to ensure that risks are appropriately mitigated.

Set clear expectations of behaviour 

Clear guidelines should be given to staff where alcohol will be served at work social events.  Alcohol-related incidents have the potential to cause significant reputational damage to businesses – especially where third party clients are in attendance and/or if the incident finds its way onto social media.  Recent case law has also confirmed that employers may be vicariously liable for injuries caused to employees as a result of drunken incidents at social events that are linked to work. Employees should know exactly what is expected of them and the consequences of not meeting these standards.  Employers may need to undertake risk assessments before organising social events and put in place measures to mitigate any risks which are identified. 

Consider possible workarounds

If employees will be attending external events or entertaining clients where alcohol will be served, but are still due to attend work the next day, consider whether any small adjustments could be made to accommodate their attendance.  For example, could they work from home the day after?  If that is not possible, consider whether a taxi home should be provided and/or a later start time facilitated to negate the need for driving.  Whilst the consequences of drink driving on "the morning after" could be very serious for the individual concerned, it could also cause significant disruption for the business.  Whilst such workarounds may create some inconvenience in the short term, they could well be beneficial in the long run.  On the flip side, it could be suggested that making such adjustments would actually encourage drinking to excess at such events.  As noted above, employers should be absolutely clear what is expected of employees at such events and on their return to work.

Contributor: Nicky Beach

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at October 2019. Specific advice should be sought for specific cases. For more information see our terms and conditions