August 5, 2016

An Employer’s Lowdown on Legal Highs

The concept of getting ‘high’ has been around since the 1600s, when the term was first used to describe intoxication. Since then, the drug of choice – opium, mushrooms, cannabis, cocaine – has changed with the years and the fashion; with each new stimulant (or depressant) outlawed as it became popular and mainstream.

In recent years though ‘legal highs’ have infiltrated our culture.

Available on high streets, in corner shops and on any number of websites, legal highs mimic the effects of illegal drugs using legal ingredients with psychoactive effects.

Or at least they were legal.

In May 2016 the Psychoactive Substances Act 2016 made the supply of most mind-altering substances illegal; although of course there are exceptions.

Anyone relying on a morning cup of extra-strong coffee to kick-start the day will testify to the stimulating effects of caffeine. Others may get a similar buzz from Red Bull (it does ‘give you wings‘ after all), nicotine or alcohol (although hopefully not first thing in the morning).

However, synthetic chemical compounds designed to mirror ecstasy, cannabis, cocaine and other assorted ‘street’ drugs have now been outlawed.

With the new legislation covering the production, distribution, sale and supply of such substances, offenders could face up to seven years in jail. But, just like some already-illegal drugs (for example cannabis) possession of small amounts won’t normally result in prosecution.

But you can still buy (il)legal highs legally

The new legislation is not as clear-cut as it first appears.

Nitrous oxide (known to many as laughing gas) – is the fourth most common recreational drug in use in the UK. It’s understandably termed “hippy crack” as it mimics the effects of snorting cocaine.

It is covered by the new legislation, yet the law still allows its sale and use for ‘legitimate’ purposes – making deliciously fluffy whipped cream for example.

As one Amazon reviewer explains:

Me and my friends have had many good nights making cream, so much fun we fell over.

And this is where the law easily gets undermined.

A UK-based internet site is currently offering its products to ‘cannabis seed collectors’ for ‘collection purposes only’, stipulating to its clients that “germination of seeds for personal use is deemed a crime.”

How many cannabis seed collectors do you know?

Your duties as an employer

So where do you, as a responsible employer, come into all this?

You may well argue that what your employees do in their own time is not your concern. But what happens when their habit affects your organisation?

Who’s responsible if an employee orders illegal psychoactive substances to be delivered to work?

What happens if one of your drivers has a serious accident following a weekend consuming ‘barely legal herbal incense’?

As an employer, you have a legal duty to ensure the health and safety of your staff and others potentially affected by what they do on your behalf.

It’s essential you have an effective drugs and alcohol policy that’s well understood by your workforce. Set out your expectations clearly. If you’re using an employee handbook produced by Moorepay, we will have explored with you exactly what you want to say and to achieve.

Having a detailed policy neatly filed away in your filing cabinet simply isn’t enough – you HAVE to communicate it clearly to your workforce and enforce it consistently.

Laying down the law

By making your expectations crystal clear, your staff cannot fail to appreciate the serious consequences of breaching them.  Of course, you may signpost where to get help if you think staff have a problem. But even if you’re sympathetic and helpful, they can’t duck responsibility for their own actions. Infringement of your drugs and alcohol policy will still be misconduct and, potentially, gross misconduct.

And it’s not just a matter of illegality. Whether drugs are legal or illegal, it’s potentially a criminal offence to drive a vehicle under their influence. This includes the effects of prescription drugs including central-nervous system depressants such as diazepam and temazepam, or over-the-counter painkillers such as codeine.

And, of course, it’s illegal to drive under the influence of perfectly legal psychoactives like alcohol too.

Vicarious liability

Don’t lose sight of the fact that you are potentially vicariously liable for the actions of your staff and may be held responsible for damage or injuries they cause.

Employees need to understand the importance of acting responsibly regarding drugs and alcohol. You need to emphasise this with all your staff. Reinforce your policy regularly –especially where there are particular risks associated with your work.

Ensure your line managers are briefed on the signs of drug and alcohol abuse so they can keep their eyes and ears open for possible infringements.

Finally, remember that the use of psychoactive substances and other drugs outside the workplace can still adversely affect your organisation. It doesn’t matter whether they’re legal or illegal; attendance, performance and sickness levels can badly suffer. Be vigilant for early signs of emerging problems so you can nip them in the bud.

Contact the team for further guidance or call 0845 184 4615.

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About the author

Mike Fitzsimmons

Mike is a Senior HR Consultant within the Moorepay Policy Team. He is responsible for the developing of employment documentation and is an Employment law advisor. With over 30 years of senior management and HR experience, Mike has managed teams of between 30 and 100 employees and is familiar with all the issues that employing people brings. He has also served as a non-executive director on the Boards of several social enterprises and undertook a five year tour of duty as Executive Chair of a £30+ million annual turnover Government agency.