Disability protection is not permission: what addiction reform would mean at work

One objection to changing the Equality Act's treatment of addiction is easy to understand.

If addiction could qualify as a disability, would an employer have to tolerate an employee taking drugs at work? Would somebody who arrived intoxicated be protected from disciplinary action? Would safety-critical employers lose the ability to remove someone from dangerous work?

No.

The proposed reform would change who is allowed through the doorway of disability law. It would not remove the workplace rules on the other side of it.

Civil Liberties Action's proposal is to remove the special rule which says that addiction to alcohol, nicotine or another substance is not, in itself, an impairment for Equality Act purposes. The ordinary definition of disability would then apply.

That definition is not automatic. A person would still have to show that they had a physical or mental impairment with a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. Simply using drugs or drinking alcohol would not be enough.¹

Nor would disability status create immunity from workplace rules.

Employers would retain responsibilities for health and safety, the ability to set reasonable standards of conduct and performance, and the ability to take proportionate action where someone's behaviour creates a genuine problem.

The reform would require a distinction which already exists throughout disability law:

Protecting a person's condition is not the same thing as protecting everything that person does.

What would actually change?

At present, someone whose addiction would otherwise satisfy the Equality Act disability test can be excluded at an earlier stage because regulation 3 of the Equality Act 2010 (Disability) Regulations specifically says addiction is not to be treated as an impairment.²

CLA's proposed amendment would remove that special exclusion.

It would not create a new category of rights specifically for addiction. Instead, people whose addictions were sufficiently serious to meet the ordinary disability test would enter the same legal framework that already applies to other disabilities.

That framework does not say that an employer must accept any behaviour connected with a disability.

For example, section 15 of the Equality Act deals specifically with situations where someone is treated unfavourably because of something arising from their disability. Such treatment is not unlawful if the employer can show that it is a proportionate means of achieving a legitimate aim.³

That principle matters.

Suppose a disability leads to behaviour which creates a serious safety risk. Disability law does not require the employer simply to ignore the risk. It requires the employer to ask whether the action being taken is justified and proportionate in the circumstances.

The duty to make reasonable adjustments operates alongside this. An employer may need to consider whether a reasonable step could address the disadvantage without creating unacceptable problems for the organisation.⁴

The word reasonable matters. Disability equality law is not an unlimited duty to accommodate any request or remove every workplace requirement.

The proposed amendment would therefore change the questions an employer may need to ask. It would not predetermine the answers.

Scenario 1: an employee asks for help before there is a workplace incident

Consider an employee who tells their manager that they have developed alcohol dependence and need treatment.

There has been no intoxication at work, no safety incident and no misconduct. They ask for several appointments during working hours and perhaps a temporary change in working pattern while entering treatment.

Under CLA's proposal, a sufficiently serious and long-term dependence could potentially amount to a disability. That could mean the employer should consider reasonable adjustments rather than simply treating the disclosure itself as a reason to dismiss or disadvantage the employee.

That is not far removed from existing good practice.

HSE describes drug and alcohol dependence as recognised medical problems. It recommends encouraging employees to seek professional help, considering time away from work for treatment and dealing with these matters confidentially.⁸

This is the sort of situation where reform could make a significant difference.

The employee is asking for help precisely because they want to prevent their health condition from becoming a workplace problem.

Equality protection could support that objective.

Scenario 2: an employee arrives at work intoxicated

Now consider a very different situation.

An employee arrives at work visibly impaired by alcohol or drugs and is not fit to carry out their duties safely.

Recognising addiction as a possible disability would not require the employer to allow them to continue working.

Employers have a general health and safety duty to protect the health, safety and welfare of employees, while employees themselves also have duties to take reasonable care. HSE specifically identifies drug and alcohol misuse as a workplace health and safety risk.⁵

The immediate response could therefore be to remove the employee from work or from particular duties.

What happens afterwards would depend on the circumstances.

If the employee has an underlying addiction amounting to a disability, an employer might need to consider whether the incident was connected with that disability, whether support or an adjustment is appropriate, what risks are involved, whether this is a first or repeated incident, and whether disciplinary action is proportionate.

None of those questions means that intoxication at work becomes a protected activity.

The protection attaches to the person's disability. It does not turn being unfit for work into an entitlement.

Scenario 3: safety-critical work

The distinction is even clearer in a safety-critical environment.

Someone operating heavy machinery, driving professionally, working at height or carrying out other safety-critical duties may present risks that do not arise in an ordinary office role.

HSE specifically identifies machinery, electrical equipment, ladders, driving and heavy lifting equipment as examples where substance misuse could have serious consequences. It says that where someone in a safety-critical job seeks help for drug or alcohol misuse, it may be necessary to transfer them to other work, at least temporarily.⁶

That is a useful illustration of what equality protection can look like in practice.

The answer need not be:

The employee has an addiction, therefore they must be permitted to continue doing dangerous work.

Nor does it automatically have to be:

The employee has an addiction, therefore they lose their job.

A temporary transfer, occupational-health assessment, treatment, monitoring or some other adjustment may sometimes manage the risk.

In other cases, the nature of the role and the level of risk may mean that the person cannot safely perform it.

The existence of disability protection does not make that factual question disappear.

It requires the employer to confront it properly.

Scenario 4: illegal drugs are possessed or supplied at work

The proposal would also leave the criminal law untouched.

Possession of a controlled drug remains an offence except in circumstances where possession is legally authorised or a statutory defence applies. Possession with intent to supply is separately prohibited.¹⁰

Amending the Equality Act would not amend the Misuse of Drugs Act.

Nor would it prevent employers from having workplace rules about possession, use or supply of drugs.

HSE's own guidance recommends that workplace drug and alcohol policies should combine support with clear rules about when disciplinary or other action will be taken. It gives possession or dealing at work as an example of conduct which an employer may say will be reported to the police.⁷

Again, disability and conduct are different questions.

Someone may have an addiction which qualifies as a disability and also commit an offence.

Recognising the first fact does not erase the second.

Scenario 5: an employee in stable recovery

Now consider an employee whose addiction is in the past.

They have been abstinent or otherwise stable for several years, are capable of doing the job and present no particular workplace safety concern.

An employer discovers their history and decides that someone who has previously experienced addiction is inherently unreliable and should not be promoted.

This is where the distinction between condition and conduct becomes particularly important.

There may be no conduct problem to regulate.

There may be no current impairment at work and no safety issue to manage.

The disadvantage is simply because of the person's history.

The Equality Act already recognises, for disabilities generally, that protection can extend to someone who had a disability in the past.¹

Removing addiction's categorical exclusion could therefore matter greatly to people in recovery who are functioning well but continue to face decisions based on assumptions about what their history says about their character or future behaviour.

That is quite different from asking an employer to tolerate intoxication.

Scenario 6: repeated incidents or poor performance

The difficult cases are likely to sit between these examples.

Imagine an employee whose addiction contributes to repeated absence, lateness, mistakes or other performance problems.

It would be misleading to say that reform would have no effect on how such a case should be handled.

It could.

If addiction became a qualifying disability, absence or behaviour arising from it could potentially engage section 15 of the Equality Act. An employer might also need to consider reasonable adjustments.

That means simply saying, “our rule is our rule”, may not always be enough.

But it does not mean an employer must tolerate poor performance indefinitely.

Section 15 expressly allows unfavourable treatment arising from disability where it can be shown to be a proportionate means of achieving a legitimate aim. The legislation deliberately contains that balancing mechanism.³

The practical questions might include how serious the problem is, what impact it has on the organisation or colleagues, what support has been attempted, whether an adjustment could realistically help, what risks are involved and whether there is a less discriminatory way of achieving the employer's legitimate objective.

Sometimes those considerations may favour additional support.

Sometimes they may ultimately support disciplinary action, capability action or dismissal.

Equality law does not guarantee an outcome. It requires a fairer decision-making process.

Reasonable adjustment does not mean unlimited adjustment

The phrase “reasonable adjustments” can sometimes make the proposed reform sound more radical than it is.

The duty is not to do everything that might conceivably help a disabled employee.

It is to take steps that it is reasonable to require the employer to take where a disabled person is placed at a substantial disadvantage.⁴

For a person experiencing addiction, possible adjustments might in appropriate circumstances include treatment appointments, temporary alterations to working hours, occupational-health involvement, a temporary change of duties or a structured return to work.

Whether any particular adjustment is reasonable would depend on the circumstances.

There would be no automatic entitlement to unlimited absence, permanent exemption from essential job requirements, unrestricted changes to working arrangements or permission to attend work intoxicated.

This is the same basic balance disability law already tries to strike for many other health conditions.

Health and safety law would remain health and safety law

Nothing in CLA's proposed change would repeal or weaken the Health and Safety at Work etc Act.

HSE states that employers have a general duty, so far as reasonably practicable, to ensure their employees' health, safety and welfare.⁹

An employer therefore could not sensibly respond to an immediate safety risk by saying that equality law prevents action.

Equality law and health and safety law have to operate together.

What equality law can require is that employers distinguish genuine risk from assumption.

There is an important difference between:

This employee cannot safely perform this task at present.

and:

This employee has experienced addiction, so people like them cannot be trusted with this kind of work.

The first may be an evidence-based safety decision.

The second is a generalisation about a class of people.

The proposed reform is concerned principally with preventing the latter while preserving the employer's ability to deal with the former.

Support and discipline can exist together

HSE's current guidance already reflects this distinction surprisingly well.

It says employers should aim to help and support an employee who discloses a drug or alcohol problem rather than move immediately to dismissal. But in the same guidance it recommends that employers set out clearly when disciplinary or other action will be taken.⁷

It also recognises that safety-critical employees may need to be moved temporarily and that employers need to consider their legal position where drug use involves unlawful activity at work.⁸

There is therefore nothing inherently contradictory about treating addiction as a health condition while enforcing workplace rules.

British health and safety guidance already encourages employers to do both.

CLA's proposal would bring equality law closer to that approach.

What the amendment would not do

Removing addiction's special exclusion would not:

• create a legal right to take illegal drugs;
• create a right to drink alcohol or use drugs during working hours;
• create a right to attend work intoxicated or otherwise unfit;
• prevent an employer from removing someone from unsafe work;
• abolish workplace drug and alcohol policies;
• prevent proportionate disciplinary or capability action;
• remove employees' responsibilities for their own safety or the safety of others;
• repeal criminal law relating to controlled drugs; or
• mean that everyone experiencing addiction automatically has a disability.

What it would do is remove the rule which says that addiction must be excluded before the ordinary disability test is even applied.

Some people experiencing addiction would still not meet that test.

Others would.

And where they did, employers would need to deal with them using the same basic framework that already applies to disabled employees: consider the person's circumstances, consider reasonable adjustments where appropriate, manage genuine risks and justify disability-related adverse treatment where the law requires it.

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

The distinction at the heart of CLA's proposal is therefore straightforward.

Disability protection concerns the person and their condition.

Workplace rules can address what the person does.

Health and safety law can address the risk created by the circumstances.

Those things do not need to be collapsed into one another.

An employee should not be refused an opportunity simply because they once experienced addiction.

An employee asking for help should not necessarily be treated in the same way as an employee dealing drugs at work.

A safety-critical worker should not be permitted to carry out dangerous duties while impaired simply because their impairment arises from a health condition.

And an employer should not have to pretend that serious misconduct did not happen merely because disability played some part in it.

The ordinary Equality Act framework is capable of making those distinctions.

CLA's proposed amendment would not give employees a right to take drugs at work.

It would give people with serious addictions the possibility of being assessed under the same disability framework as people with other physical and mental health conditions.

The difference is important.

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

That is not an argument for removing workplace standards.

It is an argument for separating legitimate workplace standards from discrimination.

References

1. Equality Act 2010, section 6 — definition of disability. Legislation.gov.uk.
2. Equality Act 2010 (Disability) Regulations 2010, regulation 3 — addictions. Legislation.gov.uk.
3. Equality Act 2010, section 15 — discrimination arising from disability. Legislation.gov.uk.
4. Equality Act 2010, sections 20 and 21 and Schedule 8 — reasonable adjustments in employment. Legislation.gov.uk.
5. Health and Safety Executive, Managing drug and alcohol misuse at work: Overview. HSE.
6. Health and Safety Executive, Managing drug and alcohol misuse at work: Look at safety-critical work. HSE.
7. Health and Safety Executive, Managing drug and alcohol misuse at work: Develop a policy. HSE.
8. Health and Safety Executive, Managing drug and alcohol misuse at work: Supporting employees. HSE.
9. Health and Safety Executive, Managing drug and alcohol misuse at work: The law. HSE.
10. Misuse of Drugs Act 1971, section 5 — restriction of possession of controlled drugs. Legislation.gov.uk.

This note concerns the Equality Act 2010 framework in England, Wales and Scotland. Northern Ireland has a separate disability discrimination framework.

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

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