Unfairly dismissed for smelling of alcohol at work

This widely-reported case emphasises the importance of ensuring policies are clear and acting on issues in the workplace when they first arise.

An employment tribunal has recently ruled that an employee had been unfairly dismissed for attending work smelling of alcohol. This was mainly because there was no clear evidence of incapacity and no previous warnings had been given. Although this particular case relates to an NHS employer, the key points are relevant to any employer dealing with the issue of an employee smelling of alcohol while at work.

Mr McElroy had worked as a healthcare assistant for over ten years at the time of his dismissal for gross misconduct. A colleague reported that Mr McElroy smelt of alcohol. His line manager interviewed him and also found that he smelt of alcohol. The claimant said that he had drunk a couple of beers the night before, and he was suspended pending an investigation. Occupational health were also informed.

The employer’s disciplinary policy listed being unfit for duty through the effect of drink as an example of gross misconduct and recommended that employees should avoid drinking alcohol shortly before coming to work. The allegation put to Mr McElroy was “you reported to work under the influence of alcohol and this led to a breakdown in trust and confidence in your ability to carry out your role”.

The employment tribunal found that the dismissal was unfair as there was no evidence of an adverse effect on the claimant’s ability to do his job and no warning had been given previously about the attending work smelling of alcohol. There was no suggestion or evidence that anyone had expressed concern about Mr McElroy’s behaviour or that he had been acting inappropriately. The employer had taken into account the employee’s refusal to attend an occupational health appointment when reaching its decision - an allegation which was not put to Mr McElroy before the disciplinary hearing. The tribunal found that a reasonable employer would not have taken into account an allegation that had not been put to the employee, nor would it have treated the refusal as an act of gross misconduct, justifying dismissal or a contributing factor in reaching its decision.

This case demonstrates the importance of ensuring policies state clearly what is not acceptable behaviour and acting on issues in the workplace when they first arise. Had the employer taken action previously and issued warnings then it may have been in a position to dismiss fairly.

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