Addiction and equality law

British equality law takes an unusually restrictive approach to addiction.

Under the Equality Act 2010, a person will normally be disabled if they have a physical or mental impairment which has a substantial and long-term adverse effect on ordinary day-to-day activities.

Addiction is treated differently.

The Equality Act 2010 (Disability) Regulations say that addiction to alcohol, nicotine or any other substance is to be treated as not amounting to an impairment, unless it originally resulted from medically prescribed drugs or other medical treatment.¹

The effect is significant. A person may have a serious, long-term addiction which substantially affects their daily life and still fail at the first stage of the disability test because the law has decided in advance that the addiction itself does not count.

Other conditions caused by the addiction can sometimes qualify separately. Government guidance gives the example of liver disease caused by alcohol dependence: the liver disease can potentially amount to an impairment even though the alcohol addiction which caused it cannot. Depression accompanying an addiction might similarly receive protection while the addiction itself does not.¹

It is an unusual distinction.

Looking at comparable legal systems in Ireland, the United States, Canada and Australia shows that protecting people from discrimination because of an addiction does not require employers or public bodies to ignore misconduct, intoxication, incapacity or genuine safety risks.

Those countries draw the line in different places. But they generally start from a principle that British law rejects: addiction can, in appropriate circumstances, be a disability.

Ireland: addiction can fall within the ordinary disability test

Ireland provides a particularly useful comparison because its equality system is close enough to Britain's to make the difference easy to see.

The Employment Equality Act 1998 defines disability broadly. Among other things, it includes a condition, illness or disease affecting a person's thought processes, perception, emotions or judgement, or resulting in disturbed behaviour. The definition also covers disabilities which previously existed, may exist in future or are imputed to someone.²

There is no equivalent blanket exclusion for addiction.

The position was tested directly in A Government Department v An Employee in 2006. The employee was a recovering alcoholic who alleged that his history had influenced decisions about his promotion.

The Irish Labour Court considered whether alcoholism could amount to a disability under the legislation. Its conclusion was clear: alcoholism was a condition, illness or disease within the statutory definition of disability.

The Court went on to find that the employee had been discriminated against on the disability ground.³

That was not an isolated view of the legislation. In a 2022 Workplace Relations Commission case involving mental-health difficulties and alcohol dependency, both sides accepted that the employee's condition came within the statutory definition of disability, and the adjudicator agreed.⁴

Irish law does not therefore say that an employer must tolerate anything an employee does because of an addiction.

An employee must still be capable of performing their job, subject to reasonable accommodation. Employers are required to take appropriate measures where necessary to enable a disabled person to access, participate in or advance in employment, unless doing so would impose a disproportionate burden.⁵

The important difference is where the legal analysis begins.

Ireland does not remove alcoholism from disability law before the person's circumstances can even be considered. The condition enters the equality framework, after which questions about capability, accommodation and proportionality can be addressed.

United States: protect the condition, regulate the use

American law draws another instructive distinction.

The Americans with Disabilities Act does not give blanket protection to people currently engaging in the illegal use of drugs when action is taken because of that use.

But that is not the same thing as saying drug addiction can never be a disability.

The ADA expressly preserves protection for people who have successfully completed rehabilitation and are no longer illegally using drugs, people participating in supervised rehabilitation who are no longer engaging in illegal use, and people wrongly regarded as current illegal drug users.⁶

US Department of Justice guidance is particularly clear in relation to opioid use disorder. It says that people with opioid use disorder will typically have a disability under the ADA where the addiction substantially limits major life activities, provided the individual is not currently engaging in illegal drug use. Treatment with appropriately prescribed medication does not remove that protection.⁷

Alcohol is treated differently again.

Unlike current illegal drug use, current alcohol use does not automatically remove a person from the ADA's protection. Alcohol use disorder can amount to a disability.

At the same time, employers retain substantial powers. They can prohibit alcohol and illegal drugs in the workplace, require employees not to be under the influence, enforce legitimate performance and conduct standards, and take action when an employee cannot perform the essential functions of a job.⁶

That distinction is important.

American law demonstrates that recognising addiction as a potential disability does not have to mean protecting drug-taking or unsafe behaviour.

It is possible to protect a person against discrimination because of their condition while regulating their conduct separately.

Canada: dependence is expressly included

Canada goes further.

Section 25 of the federal Canadian Human Rights Act expressly states that disability includes previous or existing dependence on alcohol or a drug.⁸

That wording could hardly contrast more clearly with the British regulations.

Britain expressly says addiction is not an impairment.

Canadian federal law expressly includes alcohol or drug dependence within disability.

Canada's constitutional structure means that the federal Human Rights Act does not govern every workplace or service in the country. Provinces and territories have their own human-rights legislation.

But the same principle appears elsewhere.

The Ontario Human Rights Commission, for example, states that drug and alcohol addictions are disabilities protected under Ontario's Human Rights Code. Its guidance distinguishes addiction from casual or recreational substance use and requires individual assessment rather than automatic assumptions.⁹

Again, recognising the disability does not make safety irrelevant.

Under the Canadian Human Rights Act, an employer can rely on a bona fide occupational requirement. The duty to accommodate does not extend beyond the point of undue hardship, taking account of health, safety and cost.⁸

Canada therefore manages the difficult questions within disability law instead of excluding people with addictions from it.

Australia: addiction can be a disability without creating a right to be intoxicated

Australia provides another model.

The federal Disability Discrimination Act 1992 uses a wide definition of disability. It includes disorders, illnesses and diseases affecting thought processes, emotions or judgement or resulting in disturbed behaviour. It also includes disabilities which previously existed and those imputed to a person.¹⁰

The Australian Human Rights Commission has taken the position that addiction to both legal and illegal substances is capable of falling within this definition.¹¹

This question was controversial in Australia. Litigation concerning opioid dependence led to political calls for illegal-drug addiction to be removed from federal disability protection.

The proposed federal exclusion did not become law.

Australia therefore offers an interesting contrast with Britain: when faced with the question of whether addiction should be categorically removed from disability discrimination law, federal Australian law ultimately retained the possibility of protection.

Again, this does not produce an unlimited entitlement.

The Australian legislation allows employers to act where, because of a disability, a person cannot perform the inherent requirements of the job even after reasonable adjustments. It also contains an unjustifiable-hardship defence.¹⁰

The Australian Human Rights Commission has made the practical consequence explicit: treating alcohol addiction as a disability does not amount to recognising a right to be intoxicated at work.¹¹

State and territory law creates some additional complexity. New South Wales, for example, has enacted a narrower exception concerning current addiction to prohibited drugs in some employment circumstances. But no equivalent blanket exclusion was introduced into the federal Disability Discrimination Act.

What these countries have in common

Ireland, the United States, Canada and Australia do not use identical rules.

The United States distinguishes sharply between addiction and current illegal drug use. Canada expressly includes alcohol and drug dependence. Ireland reaches addiction through a broad statutory definition of disability and case law. Australian federal law uses another broad disability definition under which addiction can qualify.

There are also important differences within Canada and Australia because of their federal systems.

But underneath those differences is a common principle.

It is possible to recognise addiction as a health condition capable of attracting equality protection without removing an employer's ability to deal with behaviour, capability or risk.

A person can have a disability and still be required to come to work sober.

A person can have a disability and still be required to meet legitimate performance standards.

A person can have a disability and still be removed from safety-critical duties where there is an evidence-based risk that cannot reasonably be managed.

And a person can have a disability without every consequence of their behaviour becoming legally protected.

The legal systems considered here deal with those questions through concepts such as reasonable accommodation, essential or inherent job requirements, conduct rules, proportionality, safety and undue hardship.

British equality law takes a different approach.

It resolves much of the question before any of those safeguards are reached by declaring that the addiction itself is not an impairment.

Why describe the British position as outdated?

“Outdated” does not simply mean old.

Some of the comparator legislation discussed here is older than the Equality Act 2010.

The problem is that the British exclusion reflects an increasingly difficult distinction between conditions considered worthy of ordinary disability assessment and one condition which Parliament has decided should be denied that assessment in advance.

The exclusion produces some strange outcomes.

An employee whose alcohol dependence has a profound and long-term effect on their life may receive no disability protection because of the addiction itself.

If the same person develops sufficiently serious depression or liver damage as a consequence, those conditions may bring them within the Act.

The law can therefore protect the consequence while refusing to recognise the condition which helped cause it.¹

The international comparison also undermines one of the most obvious objections to reform: that disability protection would prevent employers from acting when drugs or alcohol create a problem at work.

It plainly need not.

None of these systems treats disability equality as immunity from ordinary rules.

They instead attempt to distinguish the person's condition from the conduct or risk which an organisation legitimately needs to manage.

A better principle

CLA is not arguing that every person who uses drugs or alcohol should be legally disabled.

Nor are we arguing that an addiction diagnosis should excuse misconduct, prevent disciplinary action or override legitimate safety requirements.

The case for reform is narrower.

Addiction should no longer be singled out for categorical exclusion.

If a person's addiction is sufficiently serious, sufficiently long-term and sufficiently disabling that it would otherwise meet the ordinary legal test, there is a strong argument that it should be considered under that test.

The outcome would still depend on the facts.

Employers would still be able to manage conduct and performance. Safety-critical work would still be safety-critical. Reasonable-adjustment duties would remain reasonable rather than unlimited. Illegal activity would remain illegal.

What would change is the starting assumption.

Instead of the law saying “this condition does not count”, it would ask the same question it asks of other physical and mental conditions:

What effect does this condition actually have on this person?

Ireland, the United States, Canada and Australia show that this approach is neither radical nor unworkable.

In comparative terms, it is Britain's categorical exclusion which increasingly looks exceptional.

For CLA, that points towards a straightforward principle:

Protect the person. Regulate the conduct. Manage the risk.

That is already broadly how comparable equality systems deal with addiction.

There is a strong case for Britain to do the same.

References

Equality Act 2010 (Disability) Regulations 2010, regulation 3; UK Government, Guidance on matters to be taken into account in determining questions relating to the definition of disability. Legislation.gov.uk; GOV.UK guidance.
Employment Equality Act 1998 (Ireland), section 2, definition of disability. Irish Statute Book.
Irish Labour Court, A Government Department v An Employee, EDA062, 14 February 2006. Workplace Relations Commission.
Workplace Relations Commission, ADJ-00023346, 31 March 2022. Decision.
Employment Equality Act 1998 (Ireland), section 16, as amended. Law Reform Commission.
Americans with Disabilities Act, including provisions concerning current illegal drug use and alcohol. ADA.gov.
US Department of Justice, The ADA and Opioid Use Disorder. ADA.gov.
Canadian Human Rights Act, including sections 15 and 25. Justice Laws Website.
Ontario Human Rights Commission, guidance on drug and alcohol addiction and human rights. OHRC.
Disability Discrimination Act 1992 (Australia), including the definition of disability and employment provisions. Federal Register of Legislation.
Australian Human Rights Commission material on disability discrimination and addiction. Australian Human Rights Commission.

Note on UK scope: the Equality Act 2010 applies to England, Wales and Scotland. Northern Ireland has a separate disability-discrimination framework and also excludes addiction to alcohol, nicotine and non-prescribed drugs from the disability definition.

This is a living evidence note. CLA intends to review and update it as relevant law and policy develop.

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