The Psychoactive Substances Act 2016, which received royal assent on 28 January, is expected to come into force on 6 April 2016. The Act prohibits the production, distribution, sale and supply of all psychoactive substances (‘legal highs’), with the exception of those in everyday use such as medicines, alcohol, cigarettes and caffeine.
Legal highs imitate the effects of illegal drugs (such as ecstasy, cocaine and cannabis) but are currently not illegal and not controlled under the Misuse of Drugs Act 1971. They contain synthetic chemical compounds and are marketed as ‘not for human consumption’, often being sold as incense, bath salts or plant food. They can have a range of effects on users. In 2014, Office for National Statistics figures indicated that 129 people died in England, Wales and Scotland due to taking legal highs.
Organisations have a legal duty to ensure the health and safety of their staff and others who could be affected by what they do in the course of their work. The Health & Safety at Work Act 1974 requires companies to ensure, as far as is practicable, the health, safety and welfare of their employees, including providing a safe system of work and workplaces. Employers can be vicariously liable for damage or injury caused by employees in the course of their employment, for example, driving on official business while under the influence of drugs, alcohol or a legal high.
If you haven’t done so now would be a good time to review your drugs and alcohol policy to include ’legal highs’ The Act prohibits supplying these substances, but many of you may want to prohibit their consumption on company premises as well .
The Policy should set out how the organisation will deal with drugs, alcohol or substance abuse including legal highs. Further the policy should clearly spell out what the organisation expects from its staff in these areas. Clarity will avoid misunderstandings, reputational damage to the organisation and spell out to employees the consequences of a breach of policy.
Organisations should review their disciplinary policy and if required amend to make it clear that, an employee taking or supplying legal highs on the employer's premises is likely to be guilty of gross misconduct justifying summary dismissal, particularly once the new Act is in force. What disciplinary action the employer can take against employees under the influence of legal highs will depend on the policy and the effect the substance has on employees’ ability to perform their duties. Employers should consider the responsibilities of the role in question, for example, whether substance misuse has affected the employee's ability to operate heavy machinery, drive vehicles, interact with pupils if at an educational establishment, communicate with clients or the wellbeing of other team members.
The use of drugs, including legal highs, by an employee outside working hours may also adversely affect his or her work. Where this occurs, an employer should follow its disciplinary, performance and/or sickness procedures as appropriate, in strict confidence, while offering support throughout.