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Is drinking a disability?

Employment experts tell us how alcoholism is getting disability discrimination protection through the back door, and talk to a Dutch man who is spying on his whole town.15 Nov 2007


A text transcription follows.

This transcript is for anyone with a hearing impairment or who for any other reason cannot listen to the MP3 audio file.

The following is the text spoken by OUT-LAW journalist Matthew Magee.


Hello and welcome to OUT-LAW radio, the weekly podcast that keeps you up to date on all the twists and turns in the world of technology law.

Every week we bring you the latest news and in depth features that help you to make sense of the ever-changing laws that govern technology today.
 
My name is Matthew Magee, and this week we ask: what happens if you turn up drunk for work? And we talk to a Dutch self-confessed nerd who is tracking his town's movements with off the shelf equipment.

But first, the news:

  • EU-wide telecoms regulator proposed; and
  • Europe will probe further into Google's DoubleClick purchase.

The European Commission will create a pan-European telecoms regulator to oversee telco competition across all 27 member states for the very first time. It hopes the change will be in effect by 2009.

The European Telecom Market Authority (ETAM) is part of a new set of proposals which the Commission wants to replace the EU Telecoms Rules of 2002. Other plans are the strengthening of national regulators' powers and a re-allocation of radio spectrum to drive wireless internet access.

Information Society Commissioner Viviane Reding explained the move.

Viviane Reding: It is good for consumers. We are going to strengthen consumer rights in terms of choice, in terms of price and in terms of quality of services. And in order to carry out this proposal in a consistent and efficient way we propose a small but efficient European telco market authority which will work together with the national regulators in the interest of competition investment and consumer benefits.

Magee: Staying with the European Commission, it has said that it will launch an in depth investigation into Google's purchase of advertising giant DoubleClick.

The Commission has 90 working days in which to make its decision on the future of the combined company. They must make its mind up by 2nd April next year. The internet search giant makes most of its money from text ads that appear beside the answers to search queries. DoubleClick is an online ad-serving company whose systems post and monitor internet adverts.

The European Commission, which regulates competition law in Europe, has wide-ranging powers, including the power to block the merger in Europe. It said that the investigation will look at whether the combined company will be able to use its power to stop others competing with it in the future.

That was this week's OUT-LAW news

Now we turn, as we sometimes do, to employment law, and to the rules on drinking and work.

Before the decision was overturned an employment tribunal recently awarded a man who was twice drunk at work a bigger payout when he was sacked because he had not been shown his employer's alcohol policy. Seems ludicrous? The Employment Appeals Tribunal certainly thought so and sent the case back for a smaller payout, but it did raise the thorny issue of how employers should deal with alcohol problems.

Experts have told OUT-LAW that alcoholic workers can expect more protection than many employers realise, and that even the Disability Discrimination Act can come to their aid.

The DDA specifically excludes alcoholism, but Ashley Graham, an Employment Specialist with Pinsent Masons, the law firm behind OUT-LAW, said that the DDA does cover some of the effects of alcoholism, giving the disease a route into DDA protection by the back door.

She explained that the DDA excludes certain conditions.

Ashley Graham: And one of these conditions is alcoholism for obvious reasons. I suppose the Act is intended to genuinely, you know, protect people suffering from non-permanently induced conditions whereas alcoholism is seen to be, you know, on the border. But just so that that is not applied too harshly to people who are genuinely ill and suffering from illnesses perhaps that have stemmed from alcoholism or actually caused the alcoholism in the first place, it has made it quite clear that if there are any associated conditions such as depression then that in itself is covered by the DDA.

Magee: Graham said that the Act extends protection, then, to things like liver damage or depression or other mental or physical consequences of alcoholism.

Graham: The way it works is that you would at that point have a recognised disability and you would be covered by the Disability Discrimination Act and that would meant that an employer would be prevented from treating you any less favourably and subjecting you to a detriment on the grounds of your disability or for a reason related to your disability.

The body representing human resources professionals the Chartered Institute of Professional Development has just carried out a major survey of 600 companies and their drink and drugs attitudes and practices. The man behind its report, Ben Willmott, agreed with Graham's analysis.

Ben Willmott: If drinking results in a condition which is covered under the DDA then you are covered under the DDA.
Magee: Willmott said that the problem facing tribunals and courts – and therefore employers – is that alcoholism and drug use are very difficult to separate into neat causes and effect.

The problem with drink and alcohol misuse is that it can be very closely related to other issues. Sometimes it is very difficult to unpick, you know, precisely what is the cause of depression. It may be that for example, you know, drink and drug misuse may contribute to depression but that depression may be as a result of a very traumatic incident in their lives for example.

Magee: This is clearly a minefield for companies who will now not be able to discount alcoholism from DDA liabilities absolutely. So what should they do?

Well Willmott is clear: get a drugs and alcohol policy, communicate it clearly and often to staff, and stick to it when it comes to the crunch.

Willmott: One of the findings from our survey was that communication of policies is a problem and that the majority of employers tend to rely on the staff handbook or the intranet. I think the temptation sometimes to think is that, you know, well we have communicated it once so employees know about it. The reality is that communication is an ongoing process. If you want to ensure that managers and employees have, you know, an understanding of what an organisation's approach is, the sort of support that is available within an organisation as well, then you know communication is absolutely key.

Magee: Not everyone though is so sold on the certainty of policies. Graham said that yes you should make sure that policies are communicated if you have them, but that not everybody does keep up with that communication process.

The case mentioned earlier involved a Mr Sinclair who used to work for Wandsworth Council, until he turned up drunk for work twice and was fired.

He was awarded compensation for unfair dismissal by an employment tribunal because the proper processes were not followed. A discount was made for his culpability but this was set at just 25% because he had not been shown the council's alcohol policy.

Though the Employment Appeals Tribunal rejected that and insisted that a bigger reduction in the payout be made, it does show how crucial communication of a policy is.

In fact, said Graham, it may be that organisations could be better off with no policy than a poorly communicated one.
Graham: Realistically if the organisation is not capable of actively managing the policy, actively making sure that it is communicated effectively to all employees and it is kept up to date, then in some cases it might be safer not to have the policy at all.

Magee: Employers, then, must be extremely careful when dealing with alcohol and drug use cases, they must not simply rely on the Disability Discrimination Act's exemption in dealing with workers. As graham says, the stakes are high.
Graham: Discrimination claims are on the increase every year and financially the penalties in respect of the discrimination claim are much much higher within the employment tribunal than say a straightforward unfair dismissal claim. So yes, employers do need to tread very carefully in this are.


Magee: If you ever travel to Holland's ninth biggest town, be careful how you use your phone. Apeldoorn is about 60 miles east of Amsterdam, and there Alex Van Es is likely to be tracking your every move. How? By locking on to your Bluetooth connection.

Most modern phones now come with short-range wireless connections called Bluetooth. and most people have no real idea how they work, and simply leave the connection open. That is where Van Es comes in.
Using cheap, off the shelf technology, he has started a small project with potentially big implications: he is tracking the citizens of Apeldoorn.

Alex Van Es: I have set up a couple of small embedded Linux boxes across town and those boxes are scanning for Bluetooth signals. People can turn on the discovery mode on their Bluetooth phone and these boxes actually pick up those signals and register them to a central data base. You can actually pool all kinds of interesting information out of it, like, if somebody walks by a couple of those boxes you can actually track their routes or you can get statistical information about how much traffic in a certain area at a certain time of time.

The whole project depends on people's ignorance about how their phones work, said Van Es.

Van Es: Honestly most people do not know what these devices do and what the dangers are of these options in their phone and in a way that is what I am using because, trust me, most people do not even know that they are broadcasting their name into the air, you know. Lets say you put it in the Red Light District in Amsterdam and you see that your husband's phone was there because probably you know the name of your husband's phone, then you could trace your husband that way. Hey, why was he in the Red Light District.

Magee: Van Es is a Database Engineer by day, and his project shows his roots. All he does is gather the data and publish it for the world to see at bluetoothtracking.org. He does nothing with the data, but others can have full access to it.

This is pretty harmless in most cases, but as well as the name an individual can give a phone, a unique address – a MAC address – is also broadcast. There is no publicly accessible database of who owns phones with what MAC addresses, but it creates an identity trail that users will probably not be aware of, raising potential privacy concerns.

These will be all the more acute given that Van Es has now received word from fellow trackers all over the world, raising the prospect of pan-global tracking.

Van Es: I wish to expand it a little bit and I would like to expand it to other countries and the interesting thing would be if we have people showing up here and we have also a match in the UK or in the USA or anywhere that would be kind of funny because that would mean that we actually know that this person with the phone travelled to another country.

Magee: Van Es, though, says he has no actual ambitions for the data, he just publishes it because he thinks it's an interesting project.

Van Es: I am just kind of a technology nerd and I enjoy playing around with new things.


Magee: That's all we have time for this week, thanks for listening.

Why not get in touch with OUT-LAW radio? Do you know of a technology law story? We'd love to hear from you on radio@out-law.com.

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