DISCRIMINATING AGAINST THE FORMER DRINKER

 

(To be published in "Alcohol Alert" Issue 2 2006)

 

By Jonathan Goodliffe

 

Does this kind of discrimination exist?

 

People who have a history of problem drinking usually will not want to tell prospective employers about it. If they still have the problem they may want to cover it up. If they have a reasonable record of sobriety they may also want to cover it up in case they might be the victim of ignorant prejudice. There is no legal duty to make an unsolicited disclosure of these matters, although it is sometimes best to do so.

 

Some professions, such as the law and medicine, have had special difficulties facing up to problem drinking among their membership. On the one hand people may be reluctant to take effective action to help a colleague when his drinking is causing serious problems. On the other hand, after he has had appropriate treatment and got sober he may find it difficult to re-establish his career because of the profession's reluctance to trust him with a responsible job. It may, of course, be justified. It takes time to rebuild professional confidence and competence after long term addiction.

 

Medical screening

 

Nowadays an employer may ask a prospective employee to complete a questionnaire to establish whether he is medically fit to carry out his job. If it discloses problematic conditions a medical report may be asked for. Sometimes the applicant will be referred straight to a doctor or organisation providing a screening service.

 

Any information provided by the candidate in answer to the questionnaire and the contents of doctor's report will usually qualify as "sensitive personal data" under the Data Protection Act 1998[1] and must be "fairly processed"[2]. Practical guidance as to how employers should handle this data is given on the web site[3] of the Information Commissioner.

 

Medical screening can, however, sometimes be unpleasant, intrusive and disproportionate. The questionnaire may require the applicant to give information concerning medical conditions for the whole of his life time, making compliance particularly onerous for people in the later stages of their careers. The applicant may also be asked questions about the health history of his family, whether living or dead. Sometimes a medical screening may last several hours and amount to a full medical examination.

 

It is questionable whether practices such as these amount to the fair and lawful processing of sensitive personal data as required by the 1998 Act.  They may also affect the usefulness of test results for specific functions such as blood pressure.

 

The medical approach

 

Bissell & Haberman commented ("Alcoholism in the Professions" (1984)[4]) that "alcoholism is the most common, serious illness likely to affect a professional in the first fifteen years after completing graduate education". Yet aspiring doctors receive very little training on the health effects of alcohol (in contrast to, for instance, more respectable common conditions such as hypertension and depression). They may acquire the necessary know-how as they go along in their careers, but often they do not.

 

The 1998 Act defines[5] "processing of data" as including "retrieval, consultation or use of the information or data". Arguably only someone with appropriate qualifications and training can "fairly process" medical data in order to express an informed view on whether the applicant's past drinking is likely to cause problems in the future. A qualification as a general medical practitioner on its own may be insufficient. Some prospective employers will make an initial review of the answers to the questionnaire and then, if a problematical medical condition is revealed, refer to an appropriate specialist. This seems the most sensible practice.

 

A right not to be discriminated against?

 

Once the prospective employer has received the medical report and complied with its duties under the 1998 Act, there is nothing in law preventing it from discriminating against people with a record of addiction, whether they or not they are still drinking or using. So in theory the employer can apply the concept of alcoholism as an incurable disease to its logical conclusion by refusing to employ someone who has, for instance, been clean and sober for 5 years.

 

This contrasts with the position under the Americans with Disabilities Act, where addiction counts as a disability. The US Supreme Court has, however, construed the duty not to discriminate narrowly. In Raytheon v Hernandez (2003)[6] an employee had a drug test at work, tested positive for cocaine and was dismissed. He subsequently got successful treatment for his alcohol and drug addiction, and applied to be re-employed. The Court held that the employer was entitled to turn him down in reliance on its policy of not re-employing staff who had been guilty of workplace misconduct.

 

In the UK where the prospective employee's health record includes, for instance, a history of depression as well as addiction (the two conditions are often co-morbid) the depression may count as a "disability" and trigger rights under the Disability Discrimination Act 1995. The Employment Appeal Tribunal has ruled[7] that this applies even where the depression is caused by the drinking or drug taking.

 

Article 26 of the International Covenant on Civil and Political Rights requires that "the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political opinion, national or social origin, property, birth or other status". "Other status" might include a record of medical conditions. International instruments such as the Covenant, which do not have direct legal effect, may nonetheless influence the development of domestic law.

 

Discrimination on the ground of the applicant's opinions

 

A sub-species of discrimination is sometimes applied against professionals in the addictions field. Within that field widely differing opinions on the cause and nature of  alcohol and drug problems are held. Many people who have had addiction problems regard themselves as still suffering from an incurable illness years after they have become clean and sober.

 

The disease concept of alcoholism is, however, a minority view in the field of the addictions, particularly in the UK. So if, for instance, a "recovering alcoholic" applies for a job with an organisation which follows alternative theories, his belief as to the nature of his condition may be regarded as inconsistent with the approach to treatment adopted by that organisation. Alternatively his approach may be regarded as too strongly influenced by his personal experience and thus lacking in scientific rigour.

 

Sometimes this may operate in reverse, when someone who does not believe in the disease concept applies for a job in a treatment centre applying the "Minnesota Model" of treatment[8], which endorses that disease concept. He too may be rejected on the grounds of his beliefs.

 

If a person applying for a job in the field of addictions is doctrinaire in his beliefs and entirely rejects the value of alternative theories and approaches, he may well be unsuitable. Sometimes, on the other hand, it is the employer's attitude which is problematical and doctrinaire. But is there anything necessarily inconsistent, for instance, between a belief in the disease concept of alcoholism and a recognition of the value of behavioural therapies? Theories of addiction, moreover, have much common ground as well as areas of disagreement.

 

Discrimination in this form may, when carried out by a "core" public authority[9], such as an NHS trust or a local authority, contravene the Human Rights Act 1998. Article 10 of the European Convention on Human Rights, to which the 1998 gives limited effect, provides: "Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority".

 

After employment has begun

 

When the employee has been taken on with knowledge of his medical record further issues arise. Should the data remain within the personnel department or should it be communicated to the employee's line manager? In most cases the line manager will not need to know, but in some cases it may be desirable and appropriate that he should. The fair processing of this data will, however, surely require that the employee should be consulted at every stage where the data is communicated or used in any way, so that only those who need to know get to know and the data is not used unfairly behind the employee's back.

 

If the line manager does get to know of the employee's health record then any subsequent use of it will amount to "processing". The 1998 Act requires that the processing must be fair. If, for instance, the data influences decisions as to whether the employee should be promoted, given additional or different responsibilities, or made redundant, the employee must generally be consulted. Moreover the data protection principles require that data should be kept up to date, so using the outcome of a pre-employment screening several years after the employment has started is likely to be problematical.

 

Information about a person's drinking history and the application of the label "alcoholic" to him is sensitive for a number of reasons. First, the label is often particularly damaging in career terms. Secondly, many people are uncomfortable discussing the subject. If they have a concern about an employee's drinking past this may influence their decision making without their being able or willing to articulate those concerns to the employee. Thirdly, because the opportunities for discussing this "unmentionable" subject are limited, mistakes and snap judgments are more likely to be arrived at than in relation to other management issues and medical conditions.

 

At the same time there is a danger of the employee himself imagining discrimination and unfair treatment when the reality may be otherwise. Indeed his own depressive tendencies may suggest that he is being treated unfairly when that is not the case. On other occasions his concerns may have a real foundation but be difficult to prove. They may provoke denial and righteous indignation if raised with the employer.

 

Data not caught by the 1998 Act

 

Sometimes, of course, the employer's knowledge of the applicant's problematic drinking derives not from the medical screening but from being tipped off over the telephone when taking up references or otherwise by word of mouth (particularly within close-knit professions or specialities). Another possibility may be that the applicant himself makes a full disclosure informally at interview. The disclosure may not be recorded in writing but will be remembered by those to whom it is made.

 

A recent decision by the Court of Appeal[10] suggests that data in this form may not be caught by the 1998 Act and thus may not be subject to the fair processing requirement, unless, perhaps, it is used in conjunction with data which is caught by the Act.

 

Enforcement

 

Damages or compensation can be claimed for breaches of rights under the Human Rights Act 1998, the Disability Discrimination Act 1995 and the Data Protection Act 1998.

 

So, for instance, a job applicant might be subjected to a poorly conducted medical screening involving unfair processing of his sensitive personal data. It might result in his being refused the job on medical grounds. In that event he might be in a position to claim substantial compensation against the employer under section 13(1) of the 1998 Act. It would be a defence, however, to show that even if the screening had been properly conducted the result would have been the same. And if he is offered the job and his only damage, therefore, is the distress arising from the handling of the screening he cannot sue (section 13(2)).

 

Suppose he starts the job and years later does not get a promotion because of concerns about his addiction record. Those concerns are not addressed in conformity with the 1998 Act. If he can prove this he should recover substantial compensation.

 

He may also want at that point to walk out of the job. Can he say that the same behaviour resulting in the contravention of the 1998 Act also amounts to a sufficient breach of his employment contract as to justify him treating the contract of employment as at an end and claiming damages for unfair dismissal? This proposition does not yet seem to have arisen in the courts. If it does arise the outcome is likely to depend at least partly on the wording of his contract.

 

Jonathan Goodliffe is a solicitor who writes from time to time on alcohol and the law. .