Many of us are familiar with the feeling – you were at a “do” the night before and have come in the next day still suffering the after effects; possibly late or too hungover to function at your peak.
But when this sort of thing becomes a frequent occurrence and risks tipping over into possible addiction, and the employee in question is a teacher, how should the school approach this?
With the safety of students paramount and the reputation of the school potentially at risk, steps must be taken to find a solution. In years gone by, dismissal would have been the obvious end point.
These days, although dismissal may ultimately be required, most institutions will not jump to the conclusion that the individual is not fit to teach. Structured risk-assessments should be undertaken to ensure that, while the employee’s dependency is managed with compassion, the pupils and students under their care are also protected at all times. Clearly, collaborating with the employee to conquer the dependency (whether alcohol or drugs) is preferable for all parties.
This is no simple matter, of course. Not only is it challenging for addicts to admit they have a problem but, with many suffering from poor concentration and memory, and good intentions not being followed up, it is not straightforward to beat a drug/alcohol dependency or to get the employee to engage with their employer about it.
Ultimately, it is the individual who must admit the problem and motivate themselves to move towards recovery, however more employers are now turning to a so-called “Contract of Commitment” to encourage and formalise this process.
A Contract of Commitment is a document which sets out the standards of behaviour and performance the employee is required to maintain and records their proactive efforts to manage (and hopefully conquer) their addiction.
It should be drafted in consultation with the employee and the medical/occupational health professional involved in the employee’s care so that all treatment recommendations are set out, along with the measures the employer will put in place to support the employee. Making the agreement tripartite in this way adds further weight to it, with the signature of an independent and medically qualified professional helping to affirm its recommendations.
Although not a “contract” in the legal sense, it can be an extremely useful tool to support the employee in achieving appropriate standards of behaviour by bringing all support measures together, setting timescales and ensuring that the individual fully understands what he or she needs to do to keep their job.
In today’s consumer-driven educational environment, institutions must be focused on the student experience. It is therefore crucial that standards of care, teaching and supervision remain high.
Students and parents are right to expect to have a safe environment for learning. Teaching staff need to be respected and available to the student body. If a staff member has a problem with drug or alcohol dependency, schools will have very legitimate concerns about that person’s ability to perform their duties to the required standards and manage the many demands on their time.
Teamed with a detailed treatment programme, a Contract of Commitment can, for example, set out adjustments to teaching timetables, alterations to supervision duties or changes to other responsibilities (e.g. removing challenging student groups from the teacher’s remit), as well as specifying that lapses cannot be tolerated. Setting out these measures in an agreement demonstrates a supportive approach on the part of the institution so that, if possible, they can avoid losing the individual’s expertise and ability.
A Contract of Commitment should be used in conjunction with all normal risk-assessment processes and procedures designed to manage performance or disciplinary issues. The institution should raise issues of concern with the member of teaching staff in the usual way, with a Contract of Commitment usually sitting alongside a Final Written Warning issued in line with normal procedures.
As such, the agreement should clearly state that, if the employee breaches any term of the agreement, further action will be taken as appropriate (including a warning that this could include dismissal without notice). It might also be useful to detail the other relevant policies, such as random searches and drug and alcohol testing, that the individual must adhere to so that their progress can be monitored.
If the employee breaches the agreement and a dismissal follows, the Contract of Commitment will serve as a record of what the employee was told and the steps the employer took to provide support (and perhaps point him or her in the direction of other help available outside of the school).
Guidance from the case of Sinclair vs Wandsworth Council, which concerned the dismissal of an alcoholic employee, indicates that, in assessing whether the employer acted reasonably in dismissing the employee, a tribunal would look to whether it ensured that the employee understood what he or she needed to do to keep their job. In signing a carefully drafted Contract of Commitment, all parties agree to adhere to the terms it sets out and, crucially, the employee confirms that they understand that any breach would be likely to result in dismissal.
Agreeing a Contract of Commitment would hopefully be the final warning bell that motivates a teacher towards recovery.
In some cases this will result in the school or college retaining the staff member, but if not, such a dismissal would be substantially more likely to be deemed fair as there would be clear evidence that the institution gave the teacher every chance to avoid a dismissal.
Given the tricky issues that often need to be balanced in cases such as these, the importance of this should not be under-estimated.
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Clare Young is a senior solicitor in the education sector at business law firm, DWF.