A recent case shows it is not straightforward to dismiss an employee caught buying drugs at work, says Mark Hamilton

The UN's latest annual report places England & Wales in the top 10 of countries for total police recorded offences for drug possession/use, with the Institute of Alcohol Studies estimating that 17 million working days are lost each year due to alcohol, at a cost of up to £1.5bn. The total combined cost of alcohol in the workplace is up to £6.4bn each year.

This becomes a health and safety, performance and, ultimately, a disciplinary issue when it crosses the line into work. But as the recent case of Asda Stores Ltd v Coughlan shows, employers cannot take for granted that dismissing employees possessing drugs will always be fair. The employee, M Coughlan, bought cannabis from a work colleague during a break and it was discovered.

Yet the Employment Tribunal found the dismissal for gross misconduct was unfair. Asda had not given sufficient weight to its alcohol and drug policy, which offered treatment for staff. This decision has subsequently been overturned on appeal and some sense restored. The Employment Appeal Tribunal accepted that an employer could have a policy that offered support to staff with drug and alcohol problems but that this did not tie its hands when taking disciplinary action.

Nevertheless, employers do need to ensure internal procedures are followed and all mitigating factors taken into account. Disciplinary policies must properly deal with conduct relating to drugs and alcohol. Employees in higher risk roles are likely to face stricter rules and potentially regular testing at work. Where employers want to search employees on work premises, policies must allow for this.

The Asda case shows employers should not be put off taking a supportive approach. In the longer term, it may even be more cost effective to deal with issues before they become a disciplinary matter. With the government's stated aim of moving people off benefits and into work, dismissing employees may not be the answer.

But there must be a line that cannot be crossed and any policies offering support should not restrict rights of dismissal in appropriate circumstances.

Mark Hamilton is a partner in the employment department at Maclay Murray & Spens.