A recent Employment Tribunal case brought about an interesting decision regarding employees and alcohol, what can an employer do if an employee arrives at work smelling of alcohol?
How far can employers, realistically go in terms of controlling an employee’s social habits, when alcohol is concerned?
In this case, the employee was a healthcare assistant, whom allegedly attended work ‘smelling’ of alcohol. The employer subsequently suspended the individual pending a full investigation, which found that this was not an isolated incident and other members of staff had previously reported similar issues. However no reports were received that this impacted on the employees conduct at work, or on their ability to perform their everyday duties.
During the suspension period the employee was admitted to hospital with oesophagitis (an inflammation of the lining of the oesophagus), which could have been caused by the employees excessive drinking. The disciplinary hearing was suspended until the employee was well enough to attend. As part of the ongoing investigation, the employer felt it would be beneficial for the employee to undertake an occupational health review, however the employee refused. The employee was later dismissed.
When making the decision to dismiss, the employer considered the smell of alcohol to be a breach of the company disciplinary policy, which clearly stated that being ‘unfit for duty’ through alcohol is a gross misconduct offence. They further considered the employees refusal to attend an Occupational Health appointment, and on this basis dismissed the employee.
The Tribunal ruled that both reasons used by the employer were incorrect, and as such the dismissal was unfair. Firstly, the employee’s work was not affected in any way, and as such the allegation of gross misconduct could not have stood. The employer made a presumption based on reports of a smell of alcohol, which they should not have done. We have previously highlighted the importance of investigations during gross misconduct hearings, and it appears in this case, the employer fell foul of the Burchell Test (the employer had a genuine belief in the employee’s guilt, held reasonable grounds for that belief, and at the time, the employer had carried out as much investigation as was reasonable in the circumstances).
Secondly, the employee was not made aware that his refusal to attend an OH appointment had influenced the decision to dismiss, which they are entitled to know at the time of dismissal. This is a clear code of the ACAS code of practice. This was also highly contradictory to the employers own substance abuse policy, which clearly stated that refusal of assistance would not be a disciplinary offence. Therefore the employer was incorrect to dismiss based on both of these. Had the employer’s policy been clearer here, the situation may have been different.
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