Dear List

Alcoholic workers could receive protection from the Disability
Discrimination Act despite the fact that alcoholism is specifically barred
from protection, employment experts have said. They say workers could
claim protection for the disease's symptoms.

The Disability Discrimination Act (DDA) excludes a number of medical
conditions, one of which is alcoholism. But experts have said that
employers still need to pay attention to the DDA when dealing with
alcoholic workers.

Ashley Graham, an employment law specialist with Pinsent Masons, the law
firm behind OUT-LAW.COM, said conditions such as liver disease or
depression resulting from alcoholism could be protected.

"The Act is intended to protect people suffering from non-personally
induced conditions whereas alcoholism is seen to be on the border," she
told technology law podcast OUT-LAW Radio. "If there are any associated
conditions, such as depression, that is covered under the DDA."

"The way it works is that you would have a recognised disability and you
would be covered by the Disability Discrimination Act, and that would mean
that an employer would be prevented from treating you any less favourably
and subjecting you to a detriment on the grounds of your disability," she
said.

Ben Willmott has just completed a study for the Chartered Institute of
Personal Development on companies' treatment of alcohol and drugs related
issues. He agrees with Graham's view. "If drinking results in a condition
which is covered under the DDA then you are covered under the DDA," he
said.

A recent case underlined how careful employers need to be in dealing with
cases of drinking and drug use. In a case heard by an employment tribunal,
a Mr Sinclair claimed unfair dismissal by Wandsworth Council. He had been
dismissed after turning up drunk to work twice.

The tribunal awarded Sinclair damages and reduced them to take account of
his culpability in turning up to work. That reduction was only 25 per
cent, though, because he had not been given Wandsworth Council's alcohol
policy.

That was changed on appeal and the tribunal ordered to specify a bigger
reduction in Sinclair's payout, but the case highlights how carefully
companies have to treat alcoholism in the workplace.

Willmott said the most important things for companies to do were to create
a specific policy and communicate it regularly and clearly to workers.

But Graham said in the aftermath of the Sinclair decision, some
organisations were better off not creating a policy in the first place, if
they could not guarantee its successful communication and implementation.

"Realistically, if the organisation isn't capable of actively managing the
policy, actively making sure that it is communicated to all employees and
it's kept up to date, then in some cases it might be safer not to have the
policy at all," she said.

See:

•Is drinking a disability?, OUT-LAW Radio

Regards

Catherine


>
> I think that while the dependance itself may not be a DDA issue some
> secondary/associated health conditions might be (depression? cirrhosis?),
> not sure that if they engage or not makes a difference,  happy for this to
> be clarified by anyone out there who has a better handle on it than me
>
>
>
> Date: Fri, 18 Jun 2010 22:18:00 +0100
> From: [log in to unmask]
> Subject: [OCC-HEALTH] Fitness
> To: [log in to unmask]
>
>
>
> Hi, am I correct in thinking that the individual who 'engages' with
> support and complies with treatments/support mechanisms is covered by the
> DDA.  Not the easiest of cases Di by the sounds of it! Anita
>
>
>
>
>
> Best regards, Anita Pearson
>
>
>
>
>
>
> Date: Fri, 18 Jun 2010 11:04:19 +0100
> From: [log in to unmask]
> Subject: Re: [OCC-HEALTH] Fitness
> To: [log in to unmask]
>
>
> Funnily enough am going into a meeting on a similar case within next hour.
>  In my case - he simply does not turn up for work, then cites stuff like
> "my daughter was assaulted and taken to hospital", "my car got stolen". He
> has been referred to OH on many occasions, disputes he has issues with
> alcohol, says he has domestic problems and has "splurges", regularly turns
> up in a dishevelled state, has been referred on for additional support at
> his request at least twice, never turned up for the appointments.
>
> In the last week he has not turned up 3 times - union are asking me what I
> can do for him as we have a new, keen and very tough boss. I think that
> its always a management issue and OH contibute to cases by offering advice
> and intervention, but ultimately its always for management to decide the
> way forward - the individual doesnt attend work, while he may well have a
> significant problem (and I believe some of the chronic conditions that may
> be caused by dependency ARE covered by DDA?)  if he doesnt want to engage
> with any of the assistance that is available then he runs the risk of
> being penalised fairly severely because of erratic attendance,
> irrespective of cause. If management cant tolerate the absence then they
> will take manaement steps - and i`m not sure what OH can do about that
>
>
>
>
>
> From: [log in to unmask] [mailto:[log in to unmask]] On
> Behalf Of Di Stockbridge
> Sent: 18 June 2010 10:27
> To: [log in to unmask]
> Subject: [OCC-HEALTH] Fitness
>
>
>
>
>
>
> Morning,
> Anyone out there care to offer their advice/view on the following:
> Individual @work after absence long term absence with chronic liver
> condition......not seen before in OH. Assisted back  by OH,  currently on
> a phase rtw & restrictions for climbing ladders temporarily, declined
> giving any info regards drinking behaviour/intake on regular basis.
> GP report very helpful, indicating individual was diagnosed with  chronic
> condition number of years, I’ve looked at PEQ, not declared at start of
> job two years ago.
> GP also states individual had requested GP did not mention chronic
> condition on med 3/Fit note....previous absence over past year = 104 days
> in total of which 55days were due to problems associated with the above
> condition.
>  There is Support from appropriate specialist nurse through  the NHS -
> individual does not always attend
>
> Whilst I would want to support individual in work,  I believe his manager
> is likely to see a pattern in the future with either short term or
> possibly long term absence with health issues linked to his condition. I
> know Alcohol addiction & dependency are excluded from the definition of
> impairment under the DDA. When does this situation stop being an OH issue
> and become a mgt issue for them to determine what is reasonable level of
> absence to be taken in the future?
>
> I feel quite a sensitive issue for all parties? Your views appreciated
>
> Have a good weekend
>
> Di
>
> Di Stockbridge
>
>
> Occupational Health Nurse
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> Doddington Road
> Lincoln
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Catherine Mackay
Work & Health Consultant
MSc(Work Psychol.)Grad.IOSH
c.  +44(0)7956439163
l:  +44(0)1314454448
e. [log in to unmask]
www.cmkworkandhealth.com(under reconstruction)

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