FIRMS confronting workers' alcohol or drugs problems need to determine early on whether they are dealing with health or misconduct issues, warn lawyers.

"Getting things wrong could result in the employer facing an unfair dismissal, and in some cases a disability discrimin-ation claim," warned Susan Evans, head of Lester Aldridge's employment law team.

Increasingly, employment tribunals are viewing alcoholism as an illness - so employers are expected to support employees with long-term drink problems before considering dismissal.

That could mean giving them the opportunity to seek treatment and improve their performance or behaviour.

But drug-related dismissals are more likely to be viewed by a tribunal as misconduct because the use of controlled drugs is a criminal offence.

Employers also need to be aware of the legal implications of the use of random drug and alcohol testing in the workplace.

Unless random testing is justified - such as for employees operating dangerous machinery or in charge of children - it may be challenged on the grounds of privacy under the Human Rights Act 1998.

"While the Human Rights Act can only be enforced directly against public sector employers, tribunals are bound to consider any statutory employment claim such as unfair dismissal against private sector employers in light of the employee's rights under that Act."

Firms documenting alcohol and drug misuse by employees must also be careful not to breach the 1998 Data Protection Act.

First published: August 22