“The relationship between employee alcohol use and work is complex. In Ontario, there are specific legal obligations which apply, and employers must exercise caution. Without a proper understanding of their legal obligations, employers face a minefield which may unwittingly result in unwanted liability.”
Recently, Lloyd’s of London implemented a ban on employee drinking between the hours of 9am and 5pm on work days. Traditionally, the “boozy lunch” had been a big part of Lloyd’s culture. It was the preferred vehicle to seal deals and woo clients. As such, the change in policy came as a shock to the 800 employees impacted by the ban, and it was met with open hostility.
The BBC noted in a recent article that some staff took to the Company’s intranet to air their anger, with one asking “will we be asked to go to bed earlier soon?” While another questioned “did I just wake up from my drunken induced slumber to find we are now living in Orwell’s 1984?”
A spokesperson for Lloyd’s acknowledged that lunch time cocktails had traditionally formed the fabric of their business. However, an internal investigation had revealed that half of all grievance and disciplinary cases at the company in the preceding two–year period were tied in some way to alcohol use—demanding that changes be made.
The ban at Lloyd’s, and the findings that precipitated it, raise some important questions for Ontario employers: Can we ban our employees from drinking during working hours? How does this apply to a workplace function or annual Christmas party? Can we breathalyze employees? What right to privacy do our employees have? Can we fire an employee who we suspect has been drinking at work? Do we have to accommodate an employee we suspect to be an alcoholic? What obligations do we have to ensure safety at work?
The relationship between employee alcohol use and work is complex. In Ontario, there are specific legal obligations which apply, and employers must exercise caution. Without a proper understanding of their legal obligations, employers face a minefield which may unwittingly result in unwanted liability.
Implementing workplace alcohol policies
The best way for employers to manage employees and reduce the risk of unwanted liability is to take a proactive approach. This will likely include the institution of clear policy along with the fair and consistent enforcement of this policy.
Workplace policies that address employee alcohol use must be tailored specifically to your industry, balancing employee privacy, health and safety concerns and human rights obligations.
Some employers may wish to include alcohol testing as part of their policy. Before rushing to take this step, however, it is important to consider whether this requirement has a legitimate justification. An assessment of this should look at: the type of work being performed (i.e. is it a safety sensitive position); what others in your industry are doing; and on what basis testing would testing occur (on a random basis, after a workplace incident, as a condition of working in a particular role).
Part of any workplace alcohol policy should also include the following:
- a protected right for employees that are concerned about their alcohol use to self–report without fear of discipline or reprisal from the employer;
- a clear acknowledgement that alcohol addiction is a recognized disability requiring accommodation pursuant to the Ontario Human Rights Code;
- a requirement for annual training for management and non–managerial employees reiterating the employer’s commitment to educating employees as to their rights and explaining the basis for any restrictions on alcohol use in the workplace; and
- if you have a unionized workplace, the role of the union in enforcing the policy and assisting employees.
Alcohol and discipline: Learning from Volchoff v. Wright Auto Sales
Employers must be careful in disciplining employees for drinking on the job. In Volchoff v. Wright Auto Sales, the employer learned a hard lesson after firing a car sales manager for drinking during working hours.
Mr. Volchoff brought an action for wrongful dismissal following his dismissal. The employer alleged that Mr. Volchoff attended at work under the influence of alcohol, including driving company vehicles. Mr. Volchoff readily admitted that he would have an occasional glass of wine at lunch before returning to work, but denied that he operated company vehicles while under the influence (the employer was unable to offer any credible evidence of this particular allegation).
The employer also claimed to have a ‘zero tolerance’ policy for alcohol during working hours. It was unable to prove, however, that this policy was ever brought to Mr. Volchoff’s attention. There was also no evidence that Mr. Volchoff had been drinking during working hours after being told not to do so. As such, the court rejected the employer’s defence and found that Mr. Volchoff was entitled to receive pay in lieu of reasonable notice.
This case is an important reminder for employers to have clear policies in place and to ensure they are brought to the attention of all employees.
- Process matters: understanding the procedural duty to accommodate - November 18, 2022
- Fixed term contracts strike again - October 14, 2022
- Termination clause update: ousting the common law and the danger of fixed penalties - September 16, 2022