Dismissal for Smelling of Alcohol at Work was Unfair

An employee’s dismissal for coming to work smelling of alcohol has been found unfair by an employment tribunal.

In McElroy v Cambridgeshire Community Services, Mr McElroy worked as a healthcare assistant. A colleague reported that he smelt of alcohol. He was suspended pending a disciplinary investigation and also referred to occupational health (OH). The investigation noted that there had been previous occasions when concerns had been expressed that he smelt of alcohol but no one had any concerns about his behaviour or that he was acting drunk. 

The employer decided that there was a disciplinary case to answer that he reported to work under the influence of alcohol, which had led to a breakdown in trust and confidence in his ability to carry out his role. 

The OH report indicated that Mr McElroy was fit to return to work. It suggested that any similar concerns in future should be dealt with under the substance misuse policy. 

At the disciplinary hearing, the manager considered that a further referral to OH was required. Mr McElroy had given inconsistent accounts as to the possible causes of the smell of alcohol (aftershave, garlic and hospital alcohol gel) and as to when he would be well enough to return to work . She was also aware that Mr McElroy had recently been admitted to hospital with Oesophagitis, which she knew could be associated with excess alcohol consumption. She was unsure whether the OH report had taken proper account of this recent hospital admission and sought further information. 

The disciplinary hearing was adjourned. An OH appointment was fixed but Mr McElroy did not attend. The manager sought to arrange another appointment but Mr McElroy said he was not prepared to attend another appointment. The manager sought further information from OH about the recent hospital admission but it was not prepared to release any information unless Mr McElroy agreed. 

Following a rearranged disciplinary hearing Mr McElroy was dismissed for gross misconduct. The dismissal letter referred to attending work under the influence of alcohol. It also referred to his failure to follow a reasonable management instruction to attend an OH appointment. Mr McElroy appealed unsuccessfully and claimed unfair dismissal.

The employment tribunal agreed that his dismissal was unfair. Under the Trust’s disciplinary policy, being unfit for duty through the effect of drink was given as an example of gross misconduct. However it was not reasonable to conclude that Mr McElory was unfit for duty without evidence that he had been incapable of functioning effectively at work. A reasonable employer would not treat smelling of alcohol as gross misconduct without some accompanying adverse effect on performance. 

It was also not reasonable for the employer to rely on Mr McElroy’s failure to attend the OH appointment as this charge was never put to him. In addition, the substance misuse policy provided that refusing medical help would not of itself be grounds for disciplinary action.

Employers need to be careful when framing disciplinary charges and also ensure that the facts found support the decision to dismiss. In this case, being unfit for duty due to the effect of drink was a gross misconduct offence under the disciplinary policy. However the investigation report recorded that there were no concerns about Mr McElroy’s behaviour or that he had been acting drunk. There was therefore no evidence to support the employer’s conclusion that he was unfit for duty. 

Employers should also keep disciplinary proceedings under review. If further charges arise during the course of disciplinary proceedings these need to be put to the employee formally so that they understand the charges they must answer. In this case, Mr McElroy was not made aware that the employer was considering refusal to attend an OH appointment as part of the disciplinary charges. The employer should in any event have first warned Mr McElroy that refusal to attend was unacceptable and that a further refusal would lead to disciplinary action.