Unfairly dismissed for smelling of alcohol
Can you summarily dismiss an employee for smelling of alcohol? The answer is not as straightforward as you think and will depend to a great extent on the content of your policies and the way you apply them. In Mr McElroy v Cambridgeshire Community Services NHS Trust, a judge found Mr McElroy to have been unfairly dismissed, even though the judge was satisfied that a reasonable employer would have concluded that Mr McElroy did smell of alcohol. Is this just one of those mad judgements?
Well, having read the case, we don’t think so. In fact, it is a very interesting reminder that it is good practice to:
- Read your policies occasionally and review whether they are fit for your business purposes.
- Make sure that the staff who carry out disciplinary hearings and write disciplinary outcomes have some understanding of how to do so.
Mr McElroy was employed as a healthcare assistant by Cambridgeshire Community Services. He had 9 years length of service. On 21st August 2013, a colleague told Mr McElroy’s manager that Mr McElroy smelled of alcohol. He was suspended and subsequently dismissed, some months later after the Trust referred the matter to Occupational Health. Although Mr McElroy attended the first Occupational Health appointment, he refused to attend a subsequent appointment.
To be able to summarily dismiss an employee in these circumstances, your disciplinary procedure will need to provide that drinking alcohol at work or being under the influence of alcohol amounts to gross misconduct. We have often seen clients who ‘borrowed’ their staff handbook from a larger organisation which provided for support for addiction problems rather than describing it as gross misconduct, so it is worth making sure that if you have borrowed a handbook, it is fit for your organisation. You will have to give particular thought to this issue where you are in an industry where employees are expected to entertain clients.
In the Mc Elroy case, the Trust had a number of policies, which included a substance misuse policy that did not ban drinking alcohol shortly before coming on duty but recommended that employees avoid doing so. The disciplinary procedure gave being unfit for duty through the effect of alcohol as an example of gross misconduct. During the investigation, the Trust accepted that no one had any concerns about his behaviour or that he was acting drunk. In essence, he was not unfit for duty.
Mr McElroy did not have any disciplinary record regarding his drinking, even though other staff had complained at different times about him smelling of alcohol at work. On a further occasion, he had had a discussion with a staff nurse about the fact that he smelled of alcohol. She did not institute disciplinary action.
The tribunal found that the dismissal was unfair for the following reasons:
- Although the judge accepted that he smelled of alcohol, no one thought he was ‘unfit’ under the Trust’s policies and without evidence of some accompanying impairment of performance, this could not amount to gross misconduct or a reason for dismissal.
- Mr McElroy had been accused of smelling of alcohol at work in the past without disciplinary action and this incident was not very different – this is about consistency – if you don’t think it is gross misconduct in the past, why do you think it is gross misconduct now?
- Part of the reason for Mr McElroy’s dismissal was because he had refused to go to the second Occupational Health appointment. However, this reason was not put as a complaint to Mr McElroy at the disciplinary hearing and the judge found that it was not reasonable of an employer to find a complaint proven when it had never been put to the employee as a complaint. Essentially, don’t rely on reasons for dismissal that the employee has not had the chance to defend.
- Further, the Occupational Health review was part of the substance abuse policy, which was supposed to be a supportive or remedial step. It was unfair to discipline Mr McElvoy for failing to avail himself of that support.
The interesting thing about this case is that the dismissal could have been fair had the policies been drafted appropriately and had persons taking the disciplinary and appeal decisions been properly trained. In dealing with disciplinary action:
- Make sure that your policies are robust, consistent and appropriate for your business;
- Make sure your policies are adhered to;
- Take appropriate steps in each potential disciplinary incident;
- Apply the disciplinary sanctions consistently;
- Where a disciplinary issue is upheld, make sure that the sanction is also appropriate.
Have you reviewed your policy recently? If not talk to us for a free of charge review.
For more specific information or to discuss your requirements please call either Amanda Galashan or Julie Calleux at EmployEase on 0333 939 8741, or email us at info@employease.co.uk.
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