One over the eight at 8am

It was recently reported in The Times that the guidelines on safe alcohol consumption limits that have shaped health policy in Britain for 20 years were “plucked out of the air” as an “intelligent guess”. This system was based on number of units drunk each week and appear to have been overly cautious. “Binge drinking”, on the other hand, still has a high profile at the moment, and this can lead to headaches not just for the drinker, but for anyone responsible for health and safety at work.

As the Christmas season approaches, the levels of alcohol consumed will increase. For the construction industry this can have serious implications. Activities such as driving to site, operating a fork-lift truck, unloading an early delivery and using heavy tools are more dangerous if carried out while under the influence of alcohol.

Nobody wants to be a killjoy, and festive parties are a great way of improving staff morale and making business contacts. However, starts on site can be early, and if this is only a few hours since the work party fizzled out, then the increased risk of accidents, if ignored, could lead to criminal liability.

Employers have a duty of care (under section two of the Health and Safety at Work Act 1974) to ensure, so far as reasonably practicable, the health, safety and welfare at work of employees.

An employer that allows a person under the influence of alcohol to work may be in breach of its duty of care by putting the employee or others at risk.

Statutory duties also exist in relation to members of the public who are affected by the activities of the employer, and other people’s employees working on the employer’s premises. A breach can lead to criminal liability, as well as civil claims.

As part of an overall health and safety policy, firms are advised to have a written policy on alcohol and drug misuse, and decide whether to adopt zero tolerance. This may be unattractive to senior directors used to enjoying the odd glass of wine at business lunches. However, once a policy is in place, it should be applied consistently to all staff.

As part of a health and safety policy firms are advised to have written rules on alcohol and drug misuse and decide whether to adopt zero tolerance

How should excessive consumption off-duty be dealt with? Off-duty use of alcohol is not normally the legitimate concern of the employer unless it has a connection with the workplace, damages the reputation of the employer’s business or undermines the confidence in the employee.

For the construction industry the risk of still being intoxicated the next working day is an important issue.

Openly dealing with off-duty drinking in the health and safety policy, and enforcing it, can help demonstrate that health and safety duties have been taken seriously. If a fatality occurs because of another employee’s intoxication, and the Health & Safety Executive investigates, an employer needs to demonstrate all reasonably practicable steps had been taken to prevent the accident. Such a policy is one such step but this is of course secondary to the aim of avoiding accidents, and a robust policy backed up by a well publicised disciplinary procedure can be an effective deterrent.

Pursuant to the Corporate Manslaughter and Corporate Homicide Act 2007 (the corporate killing act), which comes into force next year, senior managers can be prosecuted if the way in which activities are managed or organised amounts to a gross breach of a duty of care and causes a death. A breach of health and safety legislation, such as providing a safe place of work, will fall under its scope.

Significantly, the act provides that a jury may consider whether the “attitudes, policies, systems or accepted practices within the organisation” have encouraged the failure to comply with health and safety.

As such, if senior management is seen to encourage excessive drinking, or even merely turn a blind eye to it, this may be used against them. It is advisable to review your policies now.