Last call for workplace drinking: can boozy lunches be banned?

Lloyds of London have banned their staff from drinking during the working day.

An internal memo sent to its 800 staff said: "Drinking alcohol affects individuals differently. A zero limit is therefore simpler, more consistent and in line with the modern, global and high performance culture that we want to embrace". The new policy has also been included in its employee guide.

According to press reports, some Lloyd's staff have viewed the policy as over-controlling, whilst others have welcomed the move, noting that in today's modern workplace daytime drinking should be a thing of the past.

So what issues should employers consider when introducing such a policy?

Health and safety

Employers have a legal duty under the Health and Safety at Work Act 1974 to ensure a safe place of work and safe systems of work for their staff. For some professions, the link between alcohol consumption and potential health and safety dangers is clear; think driving, flying, surgeons, and machine operators etc.

However, the connection between alcohol and ensuring a safe place of work can also be applied more widely: Lloyds itself had noted that roughly half of all its grievance and disciplinary cases in the last two years were alcohol related.

And, of course, the impact that alcohol can have on an employee's judgement cannot be ignored. This is highlighted by the case of the Morgan Stanley commodities trader who was banned by the FSA following an incident where he had exposed his employer to significant risk by trading heavily after lunchtime drinking.

Alcohol policy

The first step to introducing a ban on workplace drinking is to put in place an alcohol policy. Many employers will already have an alcohol and drugs policy that states that being under the influence at work is an act of gross misconduct and a potential reason for dismissal. If a total ban on drinking is being considered, employers should ensure that any such policy is as clear and comprehensive as possible.

Employers should make sure that the policy clearly reflects what is considered acceptable practice; for example, whether a ban just applies to core working hours or extends to the company's social events or client networking. It is also important that disciplinary and substance misuse policies properly spell out the health and safety implications of drinking at work (or the potential consequences that consumption of alcohol or drugs may have on the employer's activities). As discussed above, this may be less obvious in some professions than others, so careful thought may be required.

In drafting an alcohol policy, employers should consider what approach to take to staff who have signs of alcohol dependency which requires treatment. Some employers may wish to be more supportive of such employees and so differentiate between a sign of dependency and an isolated incident of misconduct.

Enforcing the policy

As with all policies, it is essential to be clear as to the consequences of breaching the policy. The potential level of disciplinary action needs to be set out in detail and explained to employees. If dismissal is a possible outcome, that needs to be stated.

However, it is worth noting that just because a policy states that drinking alcohol during working hours is gross misconduct, it is not certain that an employment tribunal will consider dismissal as within the range of reasonable responses by the employer in every case. If an employee is going to be dismissed then the employer will need to have sufficient evidence of the misconduct to avoid a finding of unfair dismissal. This will in part come down to whether an employer has carried out a fair and reasonable investigation.

Employers should also consider what, if any, steps they may want to take to police a ban on alcohol consumption. This may range from carrying out searches of property to testing for alcohol use. Work place testing for substance abuse in the US is now widespread and the practice has become more common in the UK amongst safety critical industries. However, both practices carry with them risks, both from an industrial relations point of view and potential breaches of the implied term of trust and confidence. Testing in particular is viewed as an intrusive activity and the Information Commissioner's Office advises that testing is unlikely to be justified unless it is for health and safety reasons and that post-incident testing where there is a reasonable suspicion...is more likely to be justified than random testing. An unreasonable request could lead to a claim of constructive unfair dismissal or breach of a person's right to respect for private and family life under Article 8 of the European Convention for Human Rights. It goes without saying that any such practices should be thought about and handled extremely carefully and included in a company's alcohol policy.

Consistency is key

Whilst the days of boozy lunches are not completely gone, recent changes in attitude towards drinking (and in particular work place drinking) suggest that more organisations may consider following Lloyd's example. It is open to an employer to adopt a zero-tolerance approach to drinking during working hours. What is essential though is consistency. Having decided what is and isn't acceptable practice in respect of drinking during working hours, employers should ensure that the policy is enforced in the same way across the company.