By Matthew Cranton
Employee welfare, particularly in respect of health and safety at work and mental health, is an incredibly hot topic as employers navigate the roadmap out of lockdown and the return to the workplace for their staff.
In October 2020, the British Liver Trust reported that alcohol abuse had increased significantly during the pandemic, having seen a 500% rise in calls to its helpline since the first lockdown began in March 2020. Employers should therefore be prepared to address issues that may arise from employees who may have suffered with addiction.
Back in the Noughties, discrimination law in the UK was dispersed amongst numerous different pieces of legislation: the Sex Discrimination Act 1975, the Race Relations Act 1976, the Disability Discrimination Act 1995, and separate employment equality regulations for each protected characteristic of religion/belief, sexual orientation and age. Then, in October 2010, the Equality Act 2010 ('EqA') came into force, effectively codifying discrimination laws into one single act.
What protection does the EqA provide to someone with a disability?
The provisions of the EqA apply to protect everyone from discrimination in certain situations, including in the workplace, when using public services, when using business or organisations that provide services or goods, when joining a club or association, when using transport, or when having contact with public bodies.
If an individual qualifies for protection under the EqA, they are protected from discrimination or harassment in respect of a 'protected characteristic', i.e. sex, age, race, religion or belief, sexual orientation, gender reassignment, marriage and civil partnership, and disability.
There are a number of types of discrimination that are prohibited under the EqA in respect of all protected characteristics:
- Direct discrimination: treating someone less favourably than you treat or would treat others because of a protected characteristic (e.g. choosing to promote a man over a woman despite being less qualified for the role);
- Indirect discrimination: applying a policy, practice or criterion (PCP) which would put people with a protected characteristic at a particular disadvantage compared to others (e.g. requiring a role to be full time, which disadvantages women as a group as women tend to bear a greater part of childcare responsibilities than men), where such PCP is not a proportionate means of achieving a legitimate aim;
- Harassment: engaging in unwanted conduct related to a protected characteristic which has the purpose or effect of either violating the individual's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them (additional definitions of harassment apply in respect of harassment of a sexual nature or related to sex or gender reassignment);
- Victimisation: subjecting a person to a detriment because they have done, or you believe they have done or will do, a 'protected act', which includes bringing a discrimination claim, complaining about harassment, or being involved in another employee's discrimination complaint (e.g. attending a grievance meeting as a companion).
There are also additional considerations that apply exclusively in respect of disability:
- Discrimination arising from disability: treating someone unfavourably because of something arising in consequence of their disability, where such treatment is not a proportionate means of achieving a legitimate aim.
- Duty to make reasonable adjustments: employers to make reasonable adjustments to help disabled job applicants, employees and former employees in certain circumstances
Is addiction a 'disability' under the EqA?
In short, no. But there are other factors to consider.
Whilst the EqA allowed for some changes to be made, many rules and regulations remained in place. The statutory definition of 'disability' for the purposes of the EqA remained as before: a physical or mental impairment which has a substantial and long-term adverse effect on the individual's ability to carry out normal day-to-day activities. 'Long term' for this purpose generally means the condition has lasted, or is likely to last, at least 12 months.
Notably, the EqA also adopted the wording of the Disability Discrimination (Meaning of Disability) Regulations 1996 in respect of whether addiction amount to a 'disability' for the purposes of the EqA. That wording confirms that:
"addiction to alcohol, nicotine or any other substance is to be treated as not amounting to an impairment for the purposes of the Act...
...[the] above does not apply to addiction which was originally the result of administration of medically prescribed drugs or other medical treatment."
As such, addiction and substance dependence are not covered by the EqA and employers are therefore not legally prevented from discriminating against an individual on the basis that they suffer from an addiction. They are permitted to treat individuals less favourably directly because they suffer from an addiction, and have no obligation to take any steps to assist the individual in removing or overcoming the barriers they face because of their addiction to help them do their job.
However, as mentioned above, there are some exceptions where protection from discrimination will apply. Where the addiction arose due to medically prescribed drugs or other medical treatment - for example an individual who has an addiction to painkillers because they were prescribed following an accident or surgery - the individual would in fact have protection under the EqA.
Interplay with other conditions
Whilst addiction is not a disability in and of itself, it is often (though not always) connected or attributable to other physical or mental health issues which may qualify as disabilities under the EqA. For example, the addiction may arise due to severe depression or anxiety - this can be particularly prevalent in individuals with chronic physical conditions, as their mental health may be affected and they may turn to alcohol or substances as a temporary fix. In such cases, the addiction could be treated as a side effect of the physical or mental disability, and therefore any discriminatory treatment on the basis of that side effect could amount to discrimination arising from disability. This can be particularly tricky to deal with if the employee has a 'hidden' or 'invisible' condition.
Alternatively, the addiction may have caused a condition which would qualify as a disability, for example alcoholism may cause any number of severe liver conditions, nicotine addiction may cause lung conditions, and addictions generallycan cause depressive illnesses. Ultimately the cause of a physical or mental disability is not relevant - the condition can in principle be 'self-inflicted' as the result of addiction and be covered by the EqA. Indeed, this issue has been addressed in both case law (for example Power v Panasonic  IRLR 151, in which the EAT held that depression caused by alcohol abuse was not prevented from being adisability) and the EqA Guidance which states that liver disease arising from alcohol dependency may be treated as an impairment.
Defence to discrimination
In the event that an individual suffering from addiction is able to qualify for the protections provided by the EqA, employers are not entirely prevented from treating them less favourably. For example, an individual had clinical depression which amounted to a disability, and was dismissed due to being unfit to perform their duties due to being under the influence of alcohol at work, the dismissal was not because of their disability and so would not amount to direct discrimination. However, it could be considered discrimination arising from disability, as the drinking is likely to have arisen due to the disability.
There are some defences available in the case of discrimination arising from disability. Firstly, the employer will not be liable unless they knew (or should have known) about the individual's disability - if the dismissal was due to drinking but they had no knowledge of the underlying depressive condition (and could not reasonably have been expected to have known), then they will not be liable.
Secondly, the employer can utilise the objective justification test, which asks whether the unfavourable treatment in questions was a proportionate means of achieving a legitimate aim. This requires the aim of the treatment to be legitimate - this may include, for example, ensuring the health and safety of staff or customers, or maintaining the quality of services provided. It also requires the step taken to be proportionate, and so where a lesser measure could achieve the same aim this may affect the viability of this defence.
It is not always the case that there is an underlying disability causing, or caused by, the addiction, and so some sufferers of addiction may not benefit from the protections of the EqA. However, any employer who is conducting disciplinaryproceedings should generally be doing so in accordance with the ACAS guide to discipline and grievances at work, which expressly states that "consideration should be given to introducing measures to help employees, regardless of status or seniority, who are suffering from alcohol or drug abuse, or from stress. The aim should be to identify employees affected and encourage them to seek help and treatment. Employers should consider whether it is appropriate to treat the problem as a medical rather than a disciplinary matter."
In order for the problem to be treated as a medical matter does not necessarily require the same burden as the statutory definition of disability; a medical condition can exist without being a disability, particularly if the adverse effect of the condition is not likely to be long term. Employees who suffer from addiction and who face disciplinary proceedings connected to their substance misuse, whether on grounds of absences, misconduct or poor performance, may be able to point to this particular requirement in the ACAS guide to demonstrate that the disciplinary sanction was unfair. If the sanction was dismissal, and the employee has at least two years' service with the employer, the dismissal may then be an unfair dismissal, although a full assessment of the circumstances would need to be undertaken.
Employers also owe a general duty to take reasonable care of the health and safety of their employees, including their mental health. If the employer has not taken reasonable precautionary steps to ensure such health and safety, and the employee suffers an injury (which may include work-related stress), the employer could face a personal injury claim or breach of contract claim. If that stress was the cause of, or a catalyst for, the employee's addiction then the employee may be able to pursue legal action against the employer notwithstanding that it was the addiction, and not a disability, that led to the sanction. Again, this would require the employee to have a medical condition but this need not amount to a disability.
Though addiction is not a disability under the EqA, it is often connected to a disability. It is therefore vital for employers to understand the nature, cause and consequences of the addiction before taking any potentially discriminatory steps. It can be incredibly difficult for employees to open up to their employer about their addiction and/or any underlying condition, and the matter should be handled with sensitivity by the employer.
It is advisable for employers to have alcohol and substance misuse policies in place which include provisions regarding support for staff who have drug, alcohol or substance misuse problems - this will provide some security to employees struggling with addiction about whether to discuss the issue with their employer. Provision can also be made in such policies for time off for rehabilitation or treatment, and reference to where disciplinary procedures may be appropriate can be included.
Addiction is by its nature a complex issue, as are the legal ramifications of addiction within the context of the workplace. Whether you are an individual facing disciplinary proceedings for an issue connected to addiction, or you are an employer considering taking disciplinary action against an employee with a drug, alcohol or substance misuse problem, it is recommended that you seek legal advice before taking active steps.
Matthew Cranton is a Partner in the Employment team at Fletcher Day. Matthew has extensive experience in bringing and defending disability discrimination and breach of contract claims, as well as in advising on disciplinary and grievance procedures.
We would like to thank Nick Conn, Founder and CEO of Help4Addiction for his guidance in the preparation of this article.