Posted by Lauren Harkin, Partner
Is it unfair to dismiss an employee for coming into work smelling of alcohol?
Many employers now have a policy which makes it clear that drinking alcohol at work, or being under the influence at work is an act of gross misconduct. The test for a ‘fair’ dismissal is that, following a fair investigation, the employer reasonably believes that misconduct has occurred, and dismissal is a reasonable sanction.
In a recent tribunal case, a healthcare assistant, Mr McElroy, came to work smelling of alcohol – not the first time this had been observed by managers. His employer, Cambridgeshire Community Services NHS Trust, had a substance misuse policy which stated that being “incapable of functioning effectively at work” because of substance misuse was an act of gross misconduct. The substance misuse policy did not ban drinking alcohol shortly before coming to work but recommended that employees avoid doing so.
When the latest incident was reported Mr McElroy was suspended from work. The issue was investigated, and the prior incidents were discovered. The investigation report also found that “nobody has had any concerns about his behaviour or that he has been acting drunk. Patients seem to consistently like him and there have been no other negative reports about him.”
He was eventually dismissed, in part because his employer reasonably believed he had breached the policy and was unfit for work.
In reaching this conclusion, the employer noted that several managers had smelt alcohol and Mr McElroy had given conflicting reasons why he may have smelt of alcohol – he had a couple of beers the night before, his aftershave could be the cause, he had eaten garlic, the hospital alcohol gel could be the cause. One of the grounds of dismissal was that his employer considered that these explanations were inconsistent. Additionally, during his suspension, Mr McElroy was admitted to hospital with a condition associated with excess alcohol consumption, the employer believed that this was another factor pointing to guilt.
So far, all appears reasonable: the employer has a policy; the employer investigated an act of potential gross misconduct, and found following investigation that Mr McElroy had committed an act of gross misconduct and dismissed him.
What did the Tribunal decide?
The Employment Tribunal disagreed with the employer, finding Mr McElroy’s dismissal unfair. Why?
Given his job as a healthcare assistant, the tribunal found that being unfit for work due to alcohol consumption would have been a fair reason to dismiss him. However, the facts did not support that Mr McElroy was “incapable of functioning effectively at work” – as defined in its policy. Therefore the allegation of gross misconduct was not proven. The tribunal found that there was no evidence that he was ‘unfit for work’ and that a reasonable employer would not have dismissed an employee for smelling of alcohol without separate evidence that he was unfit for work.
The case would likely have been decided differently had the Trust’s policy stated that employees must not drink prior to starting their shift.
What does this mean for your company?
It’s important to make sure that your disciplinary and substance misuse policies properly define misconduct and that the health and safety implications are properly considered. For example:
- if operating heavy machinery, evidence of any alcohol consumption will not be tolerated
- or being ‘under the influence’ amount to gross misconduct may be more appropriate than this employer’s wording of ‘incapable of functioning effectively’
- if proportionate, having a policy for spot-checks for alcohol and drug use
- managers are trained to make sure that any suspicions of alcohol/drug misuse are reported immediately, unlike in this case where it appear his actions were tolerated
- consider a referral to Occupational Health to determine if there is an issue which requires addressing
- make sure that the disciplinary sanction is appropriate to the findings of fact. In this case, while being unfit for duty through the effect of drink was given as an example of gross misconduct, the facts did not support the finding that the employee had been unfit for duty.
Wish to learn more? Attend our seminar on “Alcohol & drug testing in the workplace”
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